{"collection":"philosophy-ethics","full_text_available":true,"graph_url":"https://unchartedknowledge.5gfusion.net/v2/api/page/gutenberg_1201/graph","html_url":"https://unchartedknowledge.5gfusion.net/v2/page/gutenberg_1201","id":"gutenberg_1201","license":"Public Domain (US)","rights_basis":"gutenberg_metadata_copyright_false","source":"gutenberg","source_url":"https://www.gutenberg.org/ebooks/1201","summary":null,"tags":["Category: Essays, Letters & Speeches","Category: History - British","Category: History - Modern (1750+)","Category: Law & Criminology","Category: Philosophy & Ethics","Category: Politics","Jury -- Great Britain","Jury -- United States"],"text":"Ver.04.29.93*END*\n\n\n\n\nScanner's Note: I have made two changes in this text.  First I have\nremoved the footnotes to the end of each chapter and I have placed\nnote 9 at the end of chapter 6 noting that because of the ratification\nof the XIX amendment to the Constitution for the United States,\nAugust 20, 1920, women were fully enfranchised with all rights of\nvoting and jury service in all states of the Union.  Other than the lack\nof italics and bold in this text and the typos (may they be few) this is\nthe complete first edition text.  Let me know of any mistakes you have\ncaught!  My email address's for now is haradda@aol.com and\ndavidr@inconnect.com.\n\nDavid Reed\n\n\n\n\n\nAn Essay on the Trial By Jury\nBy LYSANDER SPOONER\n\n\nEntered according to Act of Congress, in the year 1852, by\nLYSANDER SPOONER\n\nIn the Clerk's Office of the District Court of Massachusetts.\n\nNOTICE TO ENGLISH PUBLISHERS\n\nThe author claims the copyright of this book in England, on\nCommon Law principles, without regard to acts of parliament; and\nif the main principle of the book itself be true, viz., that no\nlegislation, in conflict with the Common Law, is of any validity,\nhis claim is a legal one. He forbids any one to reprint the book\nwithout his consent.\n\nStereotyped by HOBART & ROBBINS;\nNew England Type and Stereotype Foundery,BOSTON.\n\n\nNOTE\n\nThis volume, it is presumed by the author, gives what will\ngenerally be considered satisfactory evidence,  though not all the\nevidence,  of what the Common Law trial by jury really is. In a\nfuture volume, if it should be called for, it is designed to\ncorroborate the grounds taken in this; give a concise view of the\nEnglish constitution; show the unconstitutional character of the\nexisting government in England, and the unconstitutional means\nby which the trial by jury has been broken down in practice; prove\nthat, neither in England nor the United States, have legislatures\never been invested by the people with any authority to impair the\npowers, change the oaths, or (with few exceptions) abridge the\njurisdiction, of juries, or select jurors on any other than Common\nLaw principles; and, consequently, that, in both countries,\nlegislation is still constitutionally subordinate to the discretion and\nconsciences of Common Law juries, in all cases, both civil and\ncriminal, in which juries sit. The same volume will probably also\ndiscuss several political and legal questions, which will naturally\nassume importance if the trial by jury should be reestablished.\n\n\n\n\nCONTENTS\n\nCHAPTER I. THE RIGHT OF JURIES TO JUDGE OF THE\nJUSTICE OF LAWS\nSECTION 1.\nSECTION 2.\n\nCHAPTER II. THE TRIAL BY JURY, AS DEFINED BY\n                        MAGNA CARTA\nSECTION 1. The History Of Magna Carta\nSECTION 2. The Language Of Magna Carta\n\nCHAPTER III. ADDITIONAL PROOFS OF THE RIGHTS AND\n             DUTIES OF JURORS.\nSECTION 1. Weakness of the Regal Authority\nSECTION 2. The Ancient Common Law Juries Were Mere Courts\n           Of Conscience\nSECTION 3. The Oaths of Jurors\nSECTION 4. The Right Of Jurors To Fix The Sentence\nSECTION 5. The Oaths Of Judges\nSECTION 6. The Coronation Oath\n\nCHAPTER IV. THE RIGHTS AND DUTIES OF JURIES IN\n            CIVIL SUITS\n\nCHAPTER V. OBJECTIONS ANSWERED\n\nCHAPTER VI. JURIES OF THE PRESENT DAY ILLEGAL\n\nCHAPTER VII. ILLEGAL JUDGES\n\nCHAPTER VIII. THE FREE ADMINISTRATION OF JUSTICE\n\nCHAPTER IX. THE CRIMINAL INTENT\n\nCHAPTER X. MORAL CONSIDERATIONS FOR JURORS\n\nCHAPTER XI. AUTHORITY OF MAGNA CARTA\n\nCHAPTER XII. LIMITATIONS IMPOSED UPON THE\n             MAJORITY BY THE TRIAL BY JURY\n\nAPPENDIX   TAXATION\n\n\n\n\nTRIAL BY JURY\n\nCHAPTER I\n\nTHE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS\n\nSECTION I.\n\nFOR more than six hundred years   that is, since Magna Carta, in\n1215 there has been no clearer principle of English or American\nconstitutional law, than that, in criminal cases, it is not only the\nright and duty of juries to judge what are the facts, what is the law,\nand what was the moral intent of the accused; but that it is also\ntheir right, and their primary and paramount duty, to judge of the\njustice of the law, and to hold all laws invalid, that are, in their\nopinion, unjust or oppressive, and all persons guiltless in violating,\nor resisting the execution of, such laws.\n\nUnless such be the right and duty of jurors, it is plain that, instead\nof juries being a \"palladium of liberty\" a barrier against the tyranny\nand oppression of the government they are really mere tools in its\nhands, for carrying into execution any injustice and oppression it\nmay desire to have executed.\n\nBut for their right to judge of the law, and the justice of the law,\njuries would be no protection to an accused person, even as to\nmatters of fact; for, if the government can dictate to a jury any law\nwhatever, in a criminal case, it can certainly dictate to them the\nlaws of evidence. That is, it can dictate what evidence is\nadmissible, and what inadmissible, and also what force or weight\nis to be given to the evidence admitted. And if the government can\nthus dictate to a jury the laws of evidence, it can not only make it\nnecessary for them to convict on a partial exhibition of the\nevidence rightfully pertaining to the case, but it can even require\nthem to convict on any evidence whatever that it pleases to offer\nthem.\n\nThat the rights and duties of jurors must necessarily be such as are\nhere claimed for them, will be evident when it is considered what\nthe trial by jury is, and what is its object.\n\n\"The trial by jury,\" then, is a \"trial by the country\" that is, by the\npeople as distinguished from a trial by the government.\n\nIt was anciently called \"trial per pais\"   that is, \"trial by the\ncountry.\" And now, in every criminal trial, the jury are told that the\naccused \"has, for trial, put himself upon the country; which\ncountry you (the jury) are.\"\n\nThe object of this trial \"by the country,\" or by the people, in\npreference to a trial by the government, is to guard against every\nspecies of oppression by the government. In order to effect this\nend, it is indispensable that the people, or \"the country,\" judge of\nand determine their own liberties against the government; instead\nof the government's judging of and determining its own powers\nover the people. How is it possible that juries can do anything to\nprotect the liberties of the people against the government, if they\nare not allowed to determine what those liberties are?\n\nAny government, that is its own judge of, and determines\nauthoritatively for the people, what are its own powers over the\npeople, is an absolute government of course. It has all the powers\nthat it chooses to exercise. There is no other or at least no more\naccurate definition of a despotism than this.\n\nOn the other hand, any people, that judge of, and determine\nauthoritatively for the government, what are their own liberties\nagainst the government, of course retain all the liberties they wish\nto enjoy. And this is freedom. At least, it is freedom to them;\nbecause, although it may be theoretically imperfect, it,\nnevertheless, corresponds to their highest notions of freedom.\n\nTo secure this right of the people to judge of their own liberties\nagainst the government, the jurors are taken, (or must be, to make\nthem lawful jurors,} from the body of the people, by lot, or by\nsome process that precludes any previos knowledge, choice, or\nselection of them, on the part of the government.\n\nThis is done to prevent the government's constituting a jury of its\nown partisans or friends; in other words, to prevent the\ngovernment's packing a jury, with a view to maintain its own laws,\nand accomplish its own purposes.\n\nIt is supposed that, if twelve men be taken, by lot, from the mass of\nthe people, without the possibility of any previous knowledge,\nchoice, or selection of them, on the part of the government, the\njury will be a fair epitome of \"the country\" at large, and not merely\nof the party or faction that sustain the measures of the government;\nthat substantially all classes of opinions, prevailing among the\npeople, will be represented in the jury; and especially that the\nopponents of the government, (if the government have any\nopponents,) will be represented there, as well as its friends; that\nthe classes, who are oppressed by the laws of the government, (if\nany are thus oppressed,) will have their representatives in the jury,\nas well as those classes, who take sides with the oppressor   that is,\nwith the government.\n\nIt is fairly presumable that such a tribunal will agree to no\nconviction except such as substantially the whole country would\nagree to, if they were present, taking part in the trial. A trial by\nsuch a tribunal is, therefore, in effect, \"a trial by the country.\" In its\nresults it probably comes as near to a trial by the whole country, as\nany trial that it is practicable to have, without too great\ninconvenience and expense. And. as unanimity is required for a\nconviction, it follows that no one can be convicted, except for the\nviolation of such laws as substantially the whole country wish to\nhave maintained. The government can enforce none of its laws,\n(by punishing offenders, through the verdicts of juries,) except\nsuch as substantially the whole people wish to have enforced. The\ngovernment, therefore, consistently with the trial by jury, can\nexercise no powers over the people, (or, what is the same thing,\nover the accused person, who represents the rights of the people,)\nexcept such a substantially the whole people of the country\nconsent that it may exercise. In such a trial, therefore, \"the\ncountry,\" or the people, judge of and dtermine their own liberties\nagainst the government, instead of thegovernment's judging of and\ndetermining its own powers over the people.\n\nBut all this \"trial by the country\" would be no trial at all \"by the\ncountry,\" but only a trial by the government, if the government\n'could either declare who may, and who may not, be jurors, or\ncould dictate to the jury anything whatever, either of law or\nevidence, that is of the essence of the trial.\n\nIf the government may decide who may, and who may not, be\njurors, it will of course select only its partisans, and those friendly\nto its measures. It may not only prescribe who may, and who may\nnot, be eligible to be drawn as jurors; but it may also question each\nperson drawn as a juror, as to his sentiments in regard to the\nparticular law involved in each trial, before suffering him to be\nsworn on the panel; and exclude him if he be found unfavorable to\nthe maintenance of such a law. [1]\n\nSo, also, if the government may dictate to the jury what laws they\nare to enforce, it is no longer a \" trial by the country,\" but a trial by\nthe government; because the jury then try the accused, not by any\nstandard of their own   not by their own judgments of their rightful\nliberties   but by a standard. dictated to them by the government.\nAnd the standard, thus dictated by the government, becomes the\nmeasure of the people's liberties. If the government dictate the\nstandard of trial, it of course dictates the results of the trial. And\nsuch a trial is no trial by the country, but only a trial by the\ngovernment; and in it the government determines what are its own\npowers over the people, instead of the people's determining what\nare their own liberties against the government. In short, if the jury\nhave no right to judge of the justice of a law of the government,\nthey plainly can do nothing to protect the people against the\noppressions of the government; for there are no oppressions which\nthe government may not authorize by law.\n\nThe jury are also to judge whether the laws are rightly expounded\nto them by the court. Unless they judge on this point, they do\nnothing to protect their liberties against the oppressions that are\ncapable of being practiced under cover of a corrupt exposition of\nthe laws. If the judiciary can authoritatively dictate to a jury any\nexposition of the law, they can dictate to them the law itself, and\nsuch laws as they please; because laws are, in practice, one thing\nor another, according as they are expounded.\n\nThe jury must also judge whether there really be any such law, (be\nit good or bad,) as the accused is charged with having transgressed.\nUnless they judge on this point, the people are liable to have their\nliberties taken from them by brute force, without any law at all.\n\nThe jury must also judge of the laws of evidence. If the\ngovernment can dictate to a jury the laws of evidence, it can not\nonly shut out any evidence it pleases, tending to vindicate the\naccused, but it can require that any evidence whatever, that it\npleases to offer, be held as conclusive proof of any offence\nwhatever which the government chooses to allege.\n\nIt is manifest, therefore, that the jury must judge of and try the\nwhole case, and every part and parcel of the case, free of any\ndictation or authority on the part of the government. They must\njudge of the existence of the law; of the true exposition of the law;\nof the justice of the law; and of the admissibility and weight of all\nthe evidence offered; otherwise the government will have\neverything its own way; the jury will be mere puppets in the hands\nof the government: and the trial will be, in reality, a trial by the\ngovernment, and not a \"trial by the country.\" By such trials the\ngovernment will determine its own powers over the people, instead\nof the people's determining their own liberties against the\ngovernment; and it will be an entire delusion to talk, as for\ncenturies we have done, of the trial by jury, as a \"palladium of\nliberty,\" or as any protection to the people against the oppression\nand tyranny of the government.\n\nThe question, then, between trial by jury, as thus described, and\ntrial by the government, is simply a question between liberty and\ndespotism. The authority to judge what are the powers of the\ngovernment, and what the liberties of the people, must necessarily\nbe vested in one or the other of the parties themselves   the\ngovernment, or the people; because there is no third party to whom\nit can be entrusted. If the authority be vested in the government,\nthe governmnt is absolute, and the people have no liberties except\nsuch as the government sees fit to indulge them with. If, on the\nother hand, that authority be vested in the people, then the people\nhave all liberties, (as against the government,) except suc as\nsubstantially the whole people (through a jury) choose to disclaim;\nand the government can exercise no power except such as\nsubstantially the whole people (through a jury) consent that it may\nexercise.\n\nSECTION  II.\n\nThe force and. justice of the preceding argument cannot be evaded\nby saying that the government is chosen by the people; that, in\ntheory, it represents the people; that it is designed to do the will of\nthe people; that its members are all sworn to observe the\nfundamental or constitutional law instituted by the people; that its\nacts are therefore entitled to be considered the acts of the people;\nand that to allow a jury, representing the people, to invalidate the\nacts of the' government, would therefore be arraying the people\nagainst themselves.\n\nThere are two answers to such an argument.\n\nOne answer is, that, in a representative government, there is no\nabsurdity or contradiction, nor any arraying of the people against\nthemselves, in requiring that the statutes or enactments of the\ngovernment shall pass the ordeal of any number of separate\ntribunals, before it shall be determined that they are to have the\nforce of laws. Our American constitutions have provided five of\nthese separate tribunals, to wit, representatives, senate,\nexecutive,[2] jury, and judges; and have made it necessary that\neach enactment shall pass the ordeal of all these separate tribunals,\nbefore its authority can be established by the punishment of those\nwho choose to transgress it. And there is no more absurdity or\ninconsistency in making a jury one of these several tribunals, than\nthere is in making the representatives, or the senate, or the\nexecutive, or the judges, one of them. There is no more absurdity\nin giving a jury a veto upon the laws, than there is in giving a veto\nto each of these other tribunals. The people are no more arrayed\nagainst themselves, when a jury puts its veto upon a statute, which\nthe other tribunals have sanctioned, than they are when the same\nveto is exercised by the representatives, the senate, the executive,\nor the judges.\n\nBut another answer to the argument that the people are arrayed\nagainst themselves, when a jury hold an enactment of the\ngovernment invalid, is, that the government, and all the\ndepartments of the government, are merely the servants and agents\nof the people; not invested with arbitrary or absolute authority to\nbind the people, but required to submit all their enactments to the\njudgment of a tribunal more fairly representing the whole people,\nbefore they carry them into execution, by punishing any individual\nfor transgressing them. If the government were not thus required to\nsubmit their enactments to the judgment of \"the country,\" before\nexecuting them upon individuals   if, in other words, the people\nhad reserved to themselves no veto upon the acts of the\ngovernment, the government, instead of being a mere servant and\nagent of the people, would be an absolute despot over the people.\nIt would have all power in its own hands; because the power to\npunish carries all other powers with it. A power that can, of itself,\nand by its own authority, punish disobedience, can compel\nobedience and submission, and is above all responsibility for the\ncharacter of its laws. In short, it is a despotism.\n\nAnd it is of no consequence to inquire how a government came by\nthis power to punish, whether by prescription, by inheritance, by\nusurpation. or by delegation from the people's If it have now but\ngot it, the government is absolute.\n\nIt is plain, therefore, that if the people have invested the\ngovernment with power to make laws that absolutely bind the\npeople, and to punish the people for transgressing those laws, the\npeople have surrendered their liberties unreservedly into the hands\nof the government.\n\nIt is of no avail to say, in answer to this view of the ease, that in\nsurrendering their liberties into the hands of the government, the\npeople took an oath from the government, that it would exercise its\npower within certain constitutional limits; for when did oaths ever\nrestrain a government that was otherwise unrestrained? Orwhen\ndid a government fail to determine that all its acts were within the\nconstitutional and authorized limits of its power, if it were\npermitted to determine that question for itself?\n\nNeither is it of any avail to say, that, if the government abuse its\npower, and enact unjust and oppressive laws, the government may\nbe changed by the influence of discussion, and the exercise of the\nright of suffrage. Discussion can do nothing to prevent the\nenactment, or procure the repeal, of unjust laws, unless it be\nunderstood that, the discussion is to be followed by resistance.\nTyrants care nothing for discussions that are to end only in\ndiscussion. Discussions, which do not interfere with the\nenforcement of their laws, are but idle wind to them. Suffrage is\nequally powerless and unreliable. It can be exercised only\nperiodically; and the tyranny must at least be borne until the time\nfor suffrage comes. Be sides, when the suffrage is exercised, it\ngives no guaranty for the repeal of existing laws that are\noppressive, and no security against the enactment of new ones that\nare equally so. The second body of legislators are liable and likely\nto be just as tyrannical as the first. If it be said that the second\nbody may be chosen for their integrity, the answer is, that the first\nwere chosen for that very reason, and yet proved tyrants. The\nsecond will be exposed to the same temptations as the first, and\nwill be just as likely to prove tyrannical. Who ever heard that\nsucceeding legislatures were, on the whole, more honest than those\nthat preceded them? What is there in the nature of men or things to\nmake them so? If it be said that the first body were chosen from\nmotives of injustice, that fact proves that there is a portion of\nsociety who desire to establish injustice; and if they were powerful\nor artful enough to procure the election of their instruments to\ncompose the first legislature, they will be likely to be powerful or\nartful enough to procure the election of the same or similar\ninstruments to compose the second. The right of suffrage,\ntherefore, and even a change of legislators, guarantees no change\nof legislation   certainly no change for the better. Even if a change\nfor the better actually comes, t cmes too late, because it comes\nonly after more or less injustice has been irreparably done.\n\nBut, at best, the right of suffrage can be exercised only\nperiodically; and between the periods the legislators are wholly\nirresponsible. No despot was ever more entirely irresponsible than\nare republican legislators during the period for which they are\nchosen. They can neither, be removed from their office, nor called\nto account while in their office, nor punished after they leave their\noffice, be their tyranny what it may. Moreover, the judicial and\nexecutive departments of the government are equally irresponsible\nto the people, and are only responsible, (by impeachment, and\ndependence for their salaries), to these irresponsible legislators.\nThis dependence of the judiciary and executive upon the\nlegislature is a guaranty that they will always sanction and execute\nits laws, whether just or unjust. Thus the legislators hold the whole\npower of the government in their hands, and are at the same time\nutterly irresponsible for the manner in which they use it.\n\nIf, now, this government, (the three branches thus really united in\none), can determine the validity of, and enforce, its own laws, it is,\nfor the time being, entirely absolute, and wholly irresponsible to\nthe people.\n\nBut this is not all. These legislators, and this government, so\nirresponsible while in power, can perpetuate their power at\npleasure, if they can determine what legislation is authoritative\nupon the people, and can enforce obedience to it, for they can not\nonly declare their power perpetual, but they can enforce\nsubmission to all legislation that is necessary to secure its\nperpetuity. They can, for example, prohibit all discussion of the\nrightfulness of their authority; forbid the use of the suffrage;\nprevent the election of any successors; disarm, plunder, imprison,\nand even kill all who refuse submission. If, therefore, the\ngovernment (all departments united) be absolute for a day   that is,\nif it can, for a day, enforce obedience to its own laws   it can, in\nthat day, secure its power for all time   like the queen, who wished\nto reign but for a day, but in that day caused the king, her husband,\nto be slain, and usurped his throne.\n\nNor will it avail to say that such acts would be unconstitutional,\nand that unconstitutional acts may be lawfully resisted; for\neverything a government pleases to do will, of course, be\ndetermined to be constitutional, if the government itself be\npermitted to determine the question of the constitutionality of its\nown acts. Those who are capable of tyranny, are capable of perjury\nto sustain it.\n\nThe conclusion, therefore, is, that any government, that can, for a\nday, enforce its own laws, without appealing to the people, (or to a\ntribunal fairly representing the people,) for their consent, is, in\ntheory, an absolute government, irresponsible to the people, and\ncan perpetuate its power at pleasure.\n\nThe trial by jury is based upon a recognition of this principle, and\ntherefore forbids the government to execute any of its laws, by\npunishing violators, in any case whatever, without first getting the\nconsent of \"the country,\" or the people, through a jury. In this way,\nthe people, at all times, hold their liberties in their own hands, and\nnever surrender them, even for a moment, into the hands of the\ngovernment.\n\nThe trial by jury, then, gives to any and every individual the\nliberty, at any time, to disregard or resist any law whatever of the\ngovernment, if he be willing to submit to the decision of a jury, the\nquestions, whether the law be intrinsically just and obligatory? and\nwhether his conduct, in disregarding or resisting it, were right in\nitself? And any law, which does not, in such trial, obtain the\nunanimous sanction of twelve men, taken at random from the\npeople, and judging according to the standard of justice in their\nown minds, free from all dictation and authority of the\ngovernment, may be transgressed and resisted with impunity, by\nwhomsoever pleases to transgress or resist it.[3]\n\nThe trial by jury authorizes all this, or it is a sham and a hoax,\nutterly worthless for protecting the people against oppression. If it\ndo not authorize an individual to resist the first and least act of\ninjustice or tyranny, on the part of the government, it does not\nauthorize him to resist the last and the greatest. If it do not\nauthorize individuals to nip tyranny in the bud, it does not\nauthorize them to cut it down when its branches are filled with the\nripe fruits of plunder and oppression.\n\nThose who deny the right of a jury to protect an individual in\nresisting an unjust law of the government, deny him all defence\nwhatsoever against oppression. The right of revolution, which\ntyrants, in mockery, accord to mankind, is no legal right under a\ngovernment; it is only a natural right to overturn a government.\nThe government itself never acknowledges this right. And the right\nis practically established only when and because the government,\nno longer exists to call it in question. The right, therefore, can be\nexercised with impunity, only when it is exercised victoriously. All\nunsuccessful attempts at revolution, however justifiable in\nthemselves, are punished as treason, if the government be\npermitted to judge of the treason. The government itself never\nadmits the injustice of its laws, as a legal defence for those who\nhave attempted a revolution, and failed. The right of revolution,\ntherefore, is  right of no practical value, except for those who are\nstronger than the government. So long, therefore, as the\noppressions of a government are kept within such limits as simply\nnot to exasperate against it a power greater than its own, the right\nof revolution cannot be appealed to, and is therefore inapplicable\nto the case. This affords a wide field for tyranny; and, if a jury\ncannot here intervene, the oppressed are utterly defenceless.\n\nIt is manifest that the only security against the tyranny of the\ngovernment lies in forcible resistance to the execution of the\ninjustice; because the injustice will certainly be executed, unless it\nbe forcibly resisted. And if it be but suffered to be executed, it\nmust then be borne; for the government never makes\ncompensation for its own wrongs.\n\nSince, then, this forcible resistance to the injustice of the\ngovernment is the only possible means of preserving liberty, it is\nindispensable to all legal liberty that this resistance should be\nlegalized. It is perfectly self-evident that where there is no legal\nright to resist the oppression of the government, there can be no\nlgal liberty. And here it is all-important to notice, that, practically\nspeaking, there can be no legal right to resist the oppressions of the\ngovernment, unless there be some legal tribunal, other than the\ngovernment, and wholly independent of, and above, the\ngovernment, to judge between the government and those who\nresist its oppressions; in other words, to judge what laws of the\ngovernment are to be obeyed, and what may be resisted and held\nfor nought. The only tribunal known to our laws, for this purpose,\nis a jury. If a jury have not the right to judge between the\ngovernment and those who disobey its laws, and resist its\noppressions, the government is absolute, and the people, legally\nspeaking are slaves. Like many other slaves they may have\nsufficient courage and strength to keep their masters somewhat in\ncheck; but they are nevertheless known to the law only as slaves.\n\nThat this right of resistance was recognized as a common law\nright, when the ancient and genuine trial by jury was in force, is\nnot only proved by the nature of the trial itself, but is\nacknowledged by history. [4]\n\nThis right of resistance is recognized by the constitution of the\nUnited States, as a strictly legal and constitutional right. It is so\nrecognized, first by the provision that \"the trial of all crimes,\nexcept in cases of impeachment, shall be by jury\"   that is, by the\ncountry   and not by the government; secondly, by the provision\nthat \"the right of the people to keep and bear arms shall not be\ninfringed.\" This constitutional security for \"the right to keep and\nbear arms,\" implies the right to use them   as much as a\nconstitutional security for the right to buy and keep food would\nhave implied the right to eat it. The constitution, therefore, takes it\nfor granted that\n\nthe people will judge of the conduct of the government, and that,\nas they have the right, they will also have the sense, to use arms,\nwhenever the necessity of the case justifies it. And it is a sufficient\nand legal defence for a person accused of using arms against the\ngovernment, if he can show, to the satisfaction of a jury, or even\nany one of a jury, that the law he resisted was an unjust one.\n\nIn the American State constitutions also, this right of resistance to\nthe oppressions of the government is recognized, in various ways,\nas a natural, legal, and constitutional right. In the first place, it is\nso recognized by provisions establishing the trial by jury; thus\nrequiring that accused persons shall be tried by \"the country,\"\ninstead of the government. In the second place, it is recognized by\nmany of them, as, for example, those of Massachusetts, Maine,\nVermont, Connecticut, Pennsylvania, Ohio, Indiana, Michigan,\nKentucky, Tennessee, Arkansas, Mississippi, Alabama, and\nFlorida, by provisions expressly declaring that the people shall\nhave the right to bear arms. In many of them also, as, for example,\nthose of Maine, New Hampshire, Vermont, Massachusetts, New\nJersey, Pennsylvania, Delaware, Ohio, Indiana, Illinois, Florida,\nIowa, and Arkansas, by provisions, in their bills of rights, declaring\nthat men have a natural, inherent, and inalienable right of\n\"defending their lives and liberties.\" This, of course, means that\nthey have a right to defend them against any injustice on the part\nof the government, and not merely on the part of private\nindividuals; because the object of all bills of rights is to assert the\nrights of individuals and the people, as against the government,\nand not as against private persons. It would be a matter of\nridiculous supererogation to assert, in a constitution of\ngovernment, the natural right of men to defend their lives and\nliberties against private trespassers.\n\nMany of these bills of rights also assert the natural right of all men\nto protect their property   that is, to protect it against the\ngovernment. It would be unnecessary and silly indeed to assert, in\na constitution of government, the natural right of individuals to\nprotect their property against thieves and robbers.\n\nThe constitutions of New Hampshire and Tennessee also declare\nthat \"The doctrine of non-resistance against arbitrary power and\noppression is absurd, slavish, and destructive of the good and\nhappiness of mankind.\"\n\nThe legal effect of these constitutional recognitions of the right of\nindividuals to defend their property, liberties, and lives, ' against\nthe government, is to legalize resistance to all injustice and\noppression, of every name and nature whatsoever, on the part of\nthe government.\n\nBut for this right of resistance, on the part of the people, all\ngovernments would become tyrannical to a degree of which few\npeople are aware. Constitutions are utterly worthless to restrain the\ntyranny of governments, unless it be understood that the people\nwill, by force, compel the government to keep within the\nconstitutional limits. Practically speaking, no government knows\nany limits to its power, except the endurance of the people. But\nthat the people are stronger than the government, and will resist in\nextreme cases, our governments would be little or nothing else\nthan organized systems of plunder and oppression. All, or nearly\nall, the advantage there is in fixing any constitutional limits to the\npower of a government, is simply to give notice to the government\nof the point at which it will meet with resistance. If the people are\nthen as good as their word, they may keep the government within\nthe bounds they have set for it; otherwise it will disregard them   as\nis proved by the example of all our American governments, in\nwhich the constitutions have all become obsolete, at the moment\nof their adoption, for nearly or quite all purposes except the\nappointment of officers, who at once become practically absolute,\nexcept so far as they are restrained by the fear of popular\nresistance.\n\nThe bounds set to the power of the government, by the trial by\njury, as will hereafter be shown, are these   that the government\nshall never touch the property, person, or natural or civil rights of\nan individual, against his consent, {xcept for the purpose of\nbringing them before a jury for trial,) unless in pursuance and\nexecution of a judgment, or decree, rendered by a jury in each\nindividual case, upon such evidence, nd such law, as are\nsatisfactory to their own understandings and consciences,\nirrespective of all legislation of the government.\n\n[1]To show that this supposition is not an extravagant one, it may\nbe mentioned that courts have repeatedly questioned jurors to\nascertain whether they were prejudiced against the government\nthat is, whether they were in favor of, or opposed to, such laws of\nthe government as were to be put in issue in the then pending trial.\nThis was done (in 1851) in the United States District Court for the\nDistrict of Massachusetts, by Peleg Sprague, the United States\ndistrict judge, in empanelling three several juries for the trials of\nScott, Hayden, and Morris, charged with having aided in the rescue\nof a fugitive slave from the custody of the United States deputy\nmarshal. This judge caused the following question to be\npropounded to all the jurors separately; and those who answered\nunfavorably for the purposes of the government, were excluded\nfrom the panel.\n\n\"Do you hold any opinions upon the subject of the Fugitive Slave\nLaw, so called, which will induce you to refuse to convict a person\nindicted under it, if the facts set forth, in the indictment, and\nconstituting the offence, are proved against him, and the court\ndirect you that the law is constitutional?\"\n\nThe reason of this question was, that \"the Fugitive Slave Law, so\ncalled,\" was so obnoxious to a large portion of the people, as to\nrender a conviction under it hopeless, if the jurors were taken\nindiscriminately from among the people.\n\nA similar question was soon afterwards propounded to the persons\ndrawn as jurors in the United States Circuit Court for the District\nof Massachusetts, by Benjamin R. Curtis, one of the Justices of the\nSupreme Court of the United States, in empanelling a jury for the\ntrial of the aforesaid Morris on the charge before mentioned; and\nthose who did not answer the question favorably for the\ngovernment were again excluded from the panel.\n\nIt has also been an habitual practice with the Supreme Court of\nMassachusetts, in empanelling juries for the trial of capital\noffences, to inquire of the persons drawn as jurors whether they\nhad any conscientious scruples against finding verdicts of guilty in\nsuch eases; that is, whether they had any conscientious scruples\nagainst sustaining the law prescribing death as the punishment of\nthe crime to be trick; and to exclude from the panel all who\nanswered in the affirmative.\n\nThe only principle upon which these questions are asked, is this\nthat no man shall be allowed to serve as juror, unless he be ready\nto enforce any enactment of the government, however cruel or\ntyrannical it may be.\n\nWhat is such a jury good for, as a protection against the tyranny of\nthe government? A jury like that is palpably nothing but, a mere\ntool of oppression in the hands of the government. A trial by such\na jury is really a trial by the government itself   and not a trial by\nthe country   because it is a trial only by men specially selected by\nthe government for their readiness to enforce its own tyrannical\nmeasures.\n\nIf that be the true principle of the trial by jury, the trial is utterly\nworthless as a security to liberty. The Czar might, with perfect\nsafety to his authority, introduce the trial by jury into Russia, if he\ncould but be permitted to select his jurors from those who were\nready to maintain his laws, without regard to their injustice.\n\nThis example is sufficient to show that the very pith of the trial by\njury, as a safeguard to liberty, consists in the jurors being taken\nindiscriminately from the whole people, and in their right to hold\ninvalid all laws which they think unjust.\n\n[2] The executive has a qualified veto upon the passage of laws, in\nmost of our governments, and an absolute veto, in all of them,\nupon the execution of any laws which he deems unconstitutional;\nbecause his oath to support the constitution (as he understands it)\nforbids him to execute any law that he deems unconstitutional.\n\n[3] And if there be so much as a reasonable doubt of the justice of\nthe laws, the benefit of that doubt must be given to the defendant,\nand not to the government. So that the government must keep its\nlaws clearly within the limits of justice, if it would ask a jury to\nenforce them.\n\n[4] Hallam says, \"The relation established between a lord and his\nvassal by the feudal tenure, far from containing principles of any\nservile and implicit obedience, permitted the compact to be\ndissolved in case of its violation by either party. This extended as\nmuch to the sovereign as to inferior lords. * * If a, vassal was\naggrieved, and if justice was denied him, he sent a defiance, that\nis, a renunciation of fealty to the king, and was entitled to enforce\nredress at the point of his sword. It then became a contest of\nstrength as between two independent potentates, and was\nterminated by treaty, advantageous or otherwise, according to the\nfortune of war. * * There remained the original principle, that\nallegiance depended conditionally upon good treatment, and that\nan appeal might be lawfully made to arms against an oppressive\ngovernment. Nor was this, we may be sure, left for extreme\nnecessity, or thought to require a long-enduring forbearance. In\nmodern times, a king, compelled by his subjects' swords to\nabandon any pretension, would be supposed to have ceased to\nreign; and the express recognition of such a right as that of\ninsurrection has been justly deemed inconsistent with the majesty\nof law. But ruder ages had ruder sentiments. Force was necessary\nto repel force; and men accustomed to see the king's authority\ndefied by a private riot, were not much shocked when it was\nresisted in defence of public freedom.\"   3 Middle Age, 240-2.\n\n\nCHAPTER II. THE TRIAL BY JURY, AS DEFINED BY\nMAGNA CARTA\n\nTHAT the trial by jury is all that has been claimed for it in the\npreceding chapter, is proved both by the history and the language\nof the Great Charter of English Liberties, to which we are to look\nfor a true definition of the trial by jury, and of which the guaranty\nfor that trial is the vital, and most memorable, part.\n\nSECTION I\n\nThe History of Magna Carta.\n\nIn order to judge of the object and meaning of that chapter of\nMagna Carta which secures the trial by jury, it is to be borne in\nmind that, at the time of Magna Carta, the king (with exceptions\nimmaterial to this discussion, but which will appear hereafter)\nwas, constitutionally, the entire government; the sole legislative,\njudicial, and executive power of the nation. The executive and\njudicial officers were merely his servants, appointed by him, and\nremovable at his pleasure. In addition to this, \"the king himself\noften sat in his court, which always attended his person. He there\nheard causes, and pronounced judgment; and though he was\nassisted by the advice of other members, it is not to be imagined\nthat a decision could be obtained contrary to his inclination or\nopinion.\"[1] Judges were in those days, and afterwards, such abject\nservants of the king, that \"we find that King Edward I. (1272 to\n1307) fined and imprisoned his judges, in the same manner as\nAlfred the Great, among the Saxons, had done before him, by the\nsole exercise of his authority.\"[2]\n\nParliament, so far as there was a parliament, was a mere council of\nthe king.[3] It assembled only at the pleasure of the king; sat only\nduring his pleasure; and when sitting had no power, so far as\ngeneral legislation was concerned, beyond that of simply advising\nthe king. The only legislation to which their assent was\nconstitutionally necessary, was demands for money and military\nservices for extraordinary occasions. Even Magna Carta itself\nmakes no provisions whatever for any parliaments, except when\nthe king should want means to carry on war, or to meet some other\nextraordinary necessity.[4] He had no need of parliaments to raise\ntaxes for the ordinary purposes of government; for his revenues\nfrom the rents of the crown lands and other sources, were ample\nfor all except extraordinary occasions. Parliaments, too, when\nassembled, consisted only of bishops, barons, and other great men\nof the kingdom, unless the king chose to invite others.[5] There\nwas no House of Commons at that time, and the people had no\nright to be heard, unless as petitioners.[6]\n\nEven when laws were made at the time of a parliament, they were\nmade in the name of the king alone. Sometimes it was inserted in\nthe laws, that they were made with the consent or advice of the\nbishops, barons, and others assembled; but often this was omitted.\nTheir consent or advice was evidently a matter of no legal\nimportance to the enactment or validity of the laws, but only\ninserted, when inserted at all, with a view of obtaining a more\nwilling submission to them on the part of the people. The style of\nenactment generally was, either \"The King wills and commands,\"\nor some other form significant of the sole legislative authority of\nthe king. The king could pass laws at any time when it pleased\nhim. The presence of a parliament was wholly unnecessary. Hume\nsays, \"It is asserted by Sir Harry Spelman, as an undoubted fact,\nthat, during the reigns of the Norman princes, every order of the\nking, issued with the consent of his privy council, had the full\nforce of law.\"[7] And other authorities abundantly corroborate this\nassertion.[8]The king was, therefore, constitutionally the\ngovernment; and the only legal limitation upon his power seems to\nhave been simply the Common Law, usually called \"the law of the\nland,\" which he was bound by oath to maintain; (which oath had\nabout the same practical value as similar oaths have always had.)\nThis \"law of the land\" seems not to have been regarded at all by\nmany of the kings, except so far as they found it convenient to do\nso, or were constrained to observe it by the fear of arousing\nresistance. But as all people are slow in making resistance,\noppression and usurpation often reached a great height; and, in the\ncase of John, they had become so intolerable as to enlist the nation\nalmost universally against him; and he was reduced to the\nnecessity of complying with any terms the barons saw fit to dictate\nto him.\n\nIt was under these circumstances, that the Great Charter of Englsh\nLiberties was granted.\n\nThe barons of England, sustained by the common people, having\ntheir king in their power, compelled him, as the price of his throne,\nto pledge himself that he would punish no freeman for a violation\nof any of his laws, unless with the consent of the peers   that is, the\nequals   of the accused.\n\nThe question here arises, Whether the barons and people intended\nthat those peers (the jury) should be mere puppets in the hands of\nthe king, exercising no opinion of their own as to the intrinsic\nmerits of the accusations they should try, or the justice of the laws\nthey should be called on to enforce? Whether those haughty and\nvictorious barons, when they had their tyrant king at their feet,\ngave back to him his throne, with full power to enact any\ntyrannical laws he might please, reserving only to a jury (\" the\ncountry\") the contemptible and servile privilege of ascertaining,\n(under the dictation of the king, or his judges, as to the laws of\nevidence), the simple fact whether those laws had been\ntransgressed? Was this the only restraint, which, when they had all\npower in their hands, they placed upon the tyranny of a king,\nwhose oppressions they had risen in arms to resist? Was it to\nobtain such a charter as that, that the whole nation had united, as it\nwere, like one man, against their king? Was it on such a charter\nthat they intended to rely, for all future time, for the security of\ntheir liberties? No. They were engaged in no such senseless work\nas that. On the contrary, when they required him to renounce\nforever the power to punish any freeman, unless by the consent of\nhis peers, they intended those powers should judge of, and try, the\nwhole case on its merits, independently of all arbitrary legislation,\nor judicial authority, on the part of the king. In this way they took\nthe liberties of each individual   and thus the liberties of the whole\npeople   entirely out of the hands of the king, and out of the power\nof his laws, and placed them in the keeping of the people\nthemselves. And this itwas that made the trial b jury the palladium\nof their liberties.\n\nThe trial by jury, be it observed, was the only real barrier\ninterposed by them against absolute despotism. Could this trial,\nthen, have been such an entire farce as it necessarily must have\nbeen, if the jury had had no power to judge of the justice of the\nlaws the people were required to obey? Did it not rather imply that\nthe jury were to judge independently and fearlessly as to\neverything involved in the charge, and especially as to its intrinsic\njustice, and thereon give their decision, (unbiased by any\nlegislation of the king,) whether the accused might be punished?\nThe reason of the thing, no less than the historical celebrity of the\nevents, as securing the liberties of the people, and the veneration\nwith which the trial by jury has continued to be regarded,\nnotwithstanding its essence and vitality have been almost entirely\nextracted from it in practice, would settle the question, if other\nevidences had left the matter in doubt.\n\nBesides, if his laws were to be authoritative with the jury, why\nshould John indignantly refuse, as at first he did, to grant the\ncharter, (and finally grant it only when brought to the last\nextremity,) on the ground that it deprived him of all power, and\nleft him only the name of a king? He evidently understood that the\njuries were to veto his laws, and paralyze his power, at discretion,\nby forming their own opinions as to the true character of the\noffences they were to try, and the laws they were to be called on to\nenforce; and that \"the king wills and commands\" was to have no\nweight with them contrary to their own judgments of what was\nintrinsically right.[9]\n\nThe barons and people having obtained by the charter all the\nliberties they had demanded of the king, it was further provided by\nthe charter itself that twenty-fie barons should be appointed by the\nbarons, out of their number, to keep special vigilance in the\nkingdom to see that the charter was observed, with authority to\nmake war upon the king in case of its violation. The king also, by\nthe charter, so far absolved all the people of the kingdom from\ntheir allegiance to him, as to authorize and require them to swear\nto obey the twenty-five barons, in case they should make war upon\nthe king for infringement of the charter. It was then thought by the\nbarons and people, that something substantial had been done for\nthe security of their liberties.\n\nThis charter, in its most essential features, and without any\nabatement as to the trial by jury, has since been confirmed more\nthan thirty times; and the people of England have always had a\ntraditionary idea that it was of some value as a guaranty against\noppression. Yet that idea has been an entire delusion, unless the\njury have had the right to judge of the justice of the laws they were\ncalled on to enforce.\n\nSECTION II.\n\nThe Language of Magna Carta\n\nThe language of the Great Charter establishes the same point that\nis established by its history, viz., that it is the right and duty of the\njury to judge of the justice of the laws.\n\nThe chapter guaranteeing the trial by jury is in these words:\n\"Nullus liber homo capiatur, vel imprisonetur, aut disseisetur, aut\nutlagetor, aut exuletur, aut aliquo modo destruatur; nec super eum\nibimus, nec super eum mittemus, nisi per legale judicium parium\nsuorum, vel per legem terrae.\"[10]\n\nThe corresponding chapter in the Great Charter, granted by Henry\nIII, (1225) and confirmed by Edward I, (1297,) (which charter is\nnow considered the basis of the English laws and constitution,) is\nin nearly the same words, as follows:\n\n\"Nullus liber homo capiatur, vel imprisonetur, aut disseisetur de\nlibero tenemento, vel libertatibus, vel liberis consuetudinibus suis,\naut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super\neum ibimus, nec super eum mittemus, nisi per legale judicium\nparium suorum, vel per legem terrae.\"\n\nThe most common translation of these words, at the present day, is\nas follows:\n\n\"No freeman shall be arrested, or imprisoned, or deprived of his\nfreehold, or his liberties, or free customs, or outlawed, or exiled, or\nin any manner destroyed, nor will we (the king) pass upon him, nor\ncondemn him, unless by the judgment of his peers, or the law of\nthe land.\"\n\n\"Nec super eum ibimus, nec super eum mittemus.\"\n\nThere has been much confusion and doubt as to the true meaning\nof the words, \"nec super eum ibimus, neo super eum mittemus.\"\nThe more common rendering has been, \"nor wilt we pass upon\nhim, nor condemn him.\" But some have translated them to mean,\n\"nor will we pass upon him, nor commit him to prison.\" Coke\ngives still a different rendering, to the effect that \"No man shall be\ncondemned at the king's suit, either before the king in his bench,\nnor before any other commissioner or judge whatsoever.\" [11]\n\nBut all these translations are clearly erroneous. In the first place,\n\"nor will we pass upon him,\"   meaning thereby to decide upon his\nguilt or innocence judicially   is not a correct rendering of the\nwords, \"nec super eum ibimus.\" There is nothing whatever, in\nthese latter words, that indicates judicial action or opinion at all.\nThe words, in their common signification, describe physical action\nalone. And the true translation of them, as will hereafter be seen,\nis, \"nor will we proceed against him,\" executively.\n\nIn the second place, the rendering, \"nor will we condemn him,\"\nbears little or no analogy to any common, or even uncommon,\nsignification of the words \"nec super eum mittemus.\" There is\nnothing in these latter words that indicates judicial action or\ndecision. Their common signification, like that of the words nec\nsuper eum ibimus, describes physical action alone. \"Nor will we\nsend upon (or against) him,\" would be the most obvious\ntranslation, and, as we shall hereafter see, such is the true\ntranslation.\n\nBut although these words describe physical action, on the part of\nthe king, as distinguished from judicial, they nevertheless do not\nmean, as one of the translations has it, \"nor will we commit him to\nprison;\" for that would be a mere repetition of what had been\nalready declared by the words \"nec imprisonetur.\" Besides, there is\nnothing about prisons in the words \"nec super eum mittemus;\"\nnothing about sending him anywhere; but only about sending\n(something or somebody) upon him, or against him   that is,\nexecutively.\n\nCoke's rendering is, if possible, the most absurd and gratuitous of\nall. What is there in the words, \"nec super eum mittemus,\" that can\nbe made to mean \"nor shall he be condemned before any other\ncommissioner or judge whatsoever.\"? Clearly there is nothing. The\nwhole rendering is a sheer fabricatin. And the whole object of it is\nto give color for the exercise of a judicial power, by the king, or\nhis judges, which is nowhere given them.\n\nNeither the words, \"Nec super eum ibimus, nec super eum\nmittemus,\" nor any other words in the whole chapter, authorize,\nprovide for, describe, or suggest, any judicial action whatever, on\nthe part either of the king, or of his judges, or of anybody, except\nthe peers, or jury. There is nothing about the king's judges at all.\nAnd, there is nothing whatever, in the whole chapter, so far as\nrelates to the action of the king, that describes or suggests anything\nbut executive action.[12]\n\nBut that all these translations are certainly erroneous, is proved by\na temporary charter, granted by John a short time previous to the\nGreat Charter, for the purpose of giving an opportunity for\nconference, arbitration, and reconciliation. between him and his\nbarons. It was to have force until the matters in controversy\nbetween them could be submitted to the Pope, and to other persons\nto be chosen, some by the king, and some by the barons. The\nwords of the charter are as follows:\n\n\"Sciatis nos concessisse baronibus nostris qui contra nos sunt quod\nnec eos nec homines suos capiemus, nec disseisiemus nec super\neos per vim vel per arma ibimus nisi per legem regni nostri vel per\njudicium parium suorum in curia nostra donec consideratio facta\nfuerit,\" &c;., &c;.\n\nThat is, \"Know that we have granted to our barons who are\nopposed to us, that we will neither arrest them nor their men, nor\ndisseize them, nor will we proceed against them by force or by\narms, unless by the law of our kingdom, or by the judgment of\ntheir peers in our court, until consideration, shall be had,\" &c;.,\n&c;.\n\nA copy of this charter is given in a note in Blackstone's\nIntroduction to the Charter.[13]\n\nMr. Christian speaks of this charter as settling the true meaning of\nthe corresponding clause of Magna Carta, on the principle tat laws\nand charters on the same subject are to be construed with reference\nto each other. See 3 Christin's Blackstone, 41, note.\n\nThe true meaning of the words, nec super eum ibimus, nec super\neum mittemus, is also proved by the \"Articles of the Great Charter\nof Liberties,\" demanded of the king by the barons, and agreed to by\nthe king, under seal, a few days before the date of the Charter, and\nfrom which the Charter was framed. [14]\nHere the words used are these:\n\n\"Ne corpus liberi hominis capiatur nec imprisonetur nec\ndisseisetur nec ut1agetur nec exuletur nec aliquo modo destruatur\nnec rex eat vel mittat super eun vi nisi per judicium pariurn\nsuorum vel per legem terrae.\"\n\nThat is, \"The body of a freeman shall not be arrested, nor\nimprisoned, nor disseized, nor outlawed, nor exiled, nor in any\nmanner destroyed, nor shall the king proceed or send (any one)\nagainst him, WITH FORCE, unless by the judgment of his peers,\nor the law of the land.\"\n\nThe true translation of the words nec super eum ibimus, nec super\neum mittemus, in Magna Carta, is thus made certain, as follows,\n\"nor will we (the king) proceed against him, nor send (any one)\nagainst him, WITH FORCE OR ARMS. [15]\n\nIt is evident that the difference between the true and false\ntranslations of the words, nec super eum ibius, nec super eum\nmittemus, is of the highest legal importance, inasmuch as the true\ntranslation, nor will we (the king) proceed against him, nor send\n(any one) against him by force of arms, represents the king only in\nan executive character, carrying the judgment of the peers and \"the\nlaw of the land\" into execution; where as the false translation, nor\nwill we pass upon him, nor condemn him,  gives color for the\nexercise of a judicial power, on the part of the king, to which the\nking had no right, but which, according to the true translation,\nbelongs wholly to th jury.\n\n\"Per legale judicium parium suorum.\"\n\nThe foregoing interpretation is corroborated, (if it were not already\ntoo plain to be susceptible of corroboration,) by the true\ninterpretation of the phrase \"per legale judicium parium suorum.\"\n\nIn giving this interpretation, I leave out, for the present, the word\nlegale, which will be defined afterwards.\n\nThe true meaning of the phrase, per judicium parium suorum, is,\naccording to the sentence of his eers. The word  judicium,\njudgment, has a technical meaning in the law, signifying the\ndecree rendered in the decision of a cause. In civil suits this\ndecision is called a judgment; in chancery proceedngs it is called a\ndecree; in criminal actions it is called a sentence, or judgment,\nindifferently. Thus, in a criminal suit, \"a motion in arrest of\njudgment,\" means a motion in arrest of sentence. [16]\nIn cases of sentence, therefore, in criminal suits, the words\nsentence and judgment are synonymous terms. They are, to this\nday, commonly used in law books as synonymous terms. And the\nphrase per jndicium parium suorum, therefore, implies that the\njury are to fix the sentence.\n\nThe word per means according to. Otherwise there is no sense in\nthe phrase per judicium paruim suorum. There would be no sense\nin saying that a king might imprison, disseize, outlaw, exile, or\notherwise punish a man, or proceed against him, or send any one\nagainst him, by force or arms, by a judgment of his peers; but there\nis sense in saying that the king may imprison, disseize, and punish\na man, or proceed against him, or send any one against him, by\nforce or arms, according to a judgment, or sentence, of his peers;\nbecause in that case the king would be merely carrying the\nsentence or judgment of the peers into execution.\n\nThe word per, in the phrase \"per judicium parium suorum,\" of\ncourse means precisely what it does in the next phrase, \"per legem\nterrae;\" where it obviously means according to, and not by, as it is\nusually translated. There would be no sense in saying that the king\nmight proceed against a man by force or arms, by the law of the\nland; but there is sense in saying that he may proceed against him,\nby force or arms, according to the law of the land; because the\nking would then be acting only as an executive officer, carrying\nthe law of the land into execution. Indeed, the true meaning of the\nword by, as used in similar cases now, always is according to; as,\nfor example, when we say a thing was done by the government, or\nby the executive, by law, we mean only that it was done by them\naccording to law; that is, that they merely executed the law.\n\nOr, if we say that the word by signifies by authority of, the result\nwill still be the same; for nothing can be done by authority of law,\nexcept what the law itself authorizes or directs to be done; that is,\nnothing can be done by authority of law, except simply to carry the\nlaw itself into execution. So nothing could be done by authority of\nthe sentence of the peers, or by authority of \"the law of the land,\"\nexcept what the sentence of the peers, or the law of the land,\nthemselves authorized or directed to be done; nothing, in short, but\nto carry the setence of the peers, or the law of the land, themselves\ninto execution.\n\nDoing a thing by law, or according to law, is only carrying the law\ninto execution. And punishing a man by, or according to, the\nsentence or judgment of his peers, is only carrying that sentence or\njudgment into execution.\n\nIf these reasons could leave any doubt that the word per is to be\ntranslated according to, that doubt would be removed by the terms\nof an antecedent guaranty for the trial by jury, granted by the\nEmperor Conrad, of Germany,  [17] two hundred years before\nMagna Carta. Blackstone cites it as follows:   (3 Blackstone, 350.)\n\"Nemo beneficium suum perdat, nisi secundum consuetu-dinem\nantecessorum nostrorum, et judicium parium suorum.\" That is, No\none shall lose his estate,  [18] unless according to (\"secundum\")\nthe custom (or law) of our ancestors, and (according to) the\nsentence (or judgment) of his peers.\n\nThe evidence is therefore conclusive that the phrase per judicium\nparian suorum means according to the sentence of his peers; thus\nimplying hat the jury, and not the government, are to fix the\nsentence.\n\nIf any additional proof were wanted that juries were to fix the\nsentence, it would be found in the following provisions of Magna\nCarta, viz.:\n\n\"A freeman shall not be amerced for a small crime, (delicto,) but\naccording to the degree of the crime; and for a great crime in\nproportion to the magnitude of it, saving to him his contenement;\n[19] and after the same manner a merchant, saving to him his\nmerchandise. And a villein shall be amerced after the same\nmanner, aving to him his waynage,  [20] if he fall under our mercy;\nand none of the aforesaid amercements shall be imposed, (or\nassessed, ponatur,) but by the oath of honest men of the\nneighborhood. Earls and Barons shall not be amerced but by their\npeers, and according to the degree of their crime.\" [21]\n\nPecuniary punishments were the most common punishments at\nthat day, and the foregoing provisions of Magna Carta show that\nthe amount of those punishments was to be fixed by the jury.\nFines went to the king, and were a source of revenue; and if the\namounts of the fines had been left to be fixed by the king, he\nwould have had a pecuniary temptation to impose unreasonable\nand oppressive ones. So, also, in regard to other punishments than\nfines. If it were left to the king to fix the punishment, he might\noften have motives to inflict cruel and oppressive ones. As it was\nthe object of the trial by jury to protect the people against all\npossible oppression from the king, it was necessary that the jury,\nand not the king, should fix the punishments. [22]\n\n\"Legale.\"\n\nThe word \"legale,\" in the phrase \"per legale judicium parium\nsuorum,\"doubtless means two things.1. That the sentence must be\ngiven in a legal manner; that is, by the legal number of jurors,\nlegally empanelled and sworn to try the cause; and that they give\ntheir judgment or sentence after a legal trial, both in form and\nsubstance, has been had. 2. That the sentence shall be for a legal\ncause or offence. If, therefore, a jury should convict and sentence a\nman, either without giving him a legal trial, or for an act that was\nnot really and legally criminal, the sentence itself would not be\nlegal; and consequently this clause forbids the king to carry such a\nsentence into execution; for the clause guarantees that he will\nexecute no judgment or sentence, except it be legale judicium,a\nlegal sentence. Whether a sentence be a legal one, would have to\nbe ascertained by the king or his judges, on appeal, or might be\njudged of informally by the king himself.\n\nThe word \"legale\"clearly did not mean that the judicium parium\nsuorum (judgment of his peers) should be a sentence which any\nlaw (of the king) should require the peers to pronounce; for in that\ncase the sentence would not be the sentence of the peers, but only\nthe sentence of the law, (that is, of the king); and the peers would\nbe only a mouthpiece of the law, (that is, of the king,) in uttering\nit.\n\n\"Per legem terrae.\"\n\nOne other phrase remains to be explained, viz., \"per legem terrae,\"\n\"by the law of the land.\"\n\nAll writers agree that this means the common law.Thus, Sir\nMatthew Hale says:\n\n\"The common law is sometimes called, by way of eminence, lex\nterrae,as in the statute of Magna Carta,chap. 29, where certainly\nthe common law is principally intended by those words, aut per\nlegem terrae;as appears by the exposition thereof in several\nsubsequent statutes; and particularly in the statute of 28 Edward\nIII., chap. 3, which is but an exposition and explanation of that\nstatute. Sometimes it is called lex Angliae,as in the statute of\nMerton, cap. 9, \"olurnus leqes Angliae mutari,\"&c;., (We will that\nthe laws of England be not changed). Sometimes it is called lex et\nconsuetudo regni(the law and custom of the kingdom); as in all\ncommissions of oyer and terminer; and in the statutes of 18\nEdward I., cap.  , and de quo warranto,and divers others. But most\ncommonly it is called the Common Law, or the Common Law of\nEngland; as in the statute Articuli super Chartas,cap. 15, in the\nstatute 25 Edward III., cap. 5, (4,) and infinite more records and\nstatutes.\"   1 Hale's History of the Common Law, 128.\n\nThis common law, or \"law of the land,\" the king was sworn to\nmaintain.This fact is recognized by a statute made at Westminster,\nin 1346, by Edward III., which commences in this manner:\n\n\"Edward, by the Grace of God, &c;., &c;., to the Sheriff of\nStafford, Greeting: Because that by divers complaints made to us,\nwe have perceived that the law of the land, which we by oath are\nbound fo maintain,\"&c;. St. 20 Edward III\n\nThe foregoing authorities are cited to show to the unprofessional\nreader, what is well known to the profession, that legem terrae, the\nlaw of the land,mentioned in Magna Carta, was the common,\nancient, fundamental law of the land, which the kings were bound\nby oath to observe; and that it did not include any statutes or laws\nenacted by the king himself, the legislative power of the nation.\n\nIf the term legem terraehad included laws enacted by the king\nhimself, the whole chapter of Magna Carta, now under discussion,\nwould have amounted to nothing as a protection to liberty; because\nit would have imposed no restraint whatever upon the power of the\nking. The king could make laws at any time, and such ones as he\npleased. He could, therefore, have done anything he pleased, by\nthe law of the land,as well as in any other way, if his own laws had\nbeen \"the law of the land.\"If his own laws had been \"the law of the\nland,\" within the meaning of that term as used in Magna Carta, this\nchapter of Magna Carta woold have been sheer nonsense,\ninasmuch as the whole purpot of it would have been simply that\n\"no man shall be arrested, imprisoned, or deprived of his freehold,\nor his liberties, or free customs, or outlawed, or exiled, or in any\nmanner destroyed (by the king); nor shall the king proceed against\nhim, nor send any one againist him with force and arms, unless by\nthe judgment of his peers, or uness the king shall please to do so.\"\n\nThis chapter of Magna Carta would, therefore, have imposed not\nthe slightest restraint upon the power of the king, or afforded the\nslightest protection to the liberties of the people, if the laws of the\nking had been embraced in theterm legem terrae. But if legem\nterrae was the common law, which the king was sworn to\nmaintain, then a real restriction was laid upon his power, and a real\nguaranty given to the people for their liberties.\n\nSuch, then, being the meaning of legem terrae, the fact is\nestablished that Magna Carta took an accused person entirely out\nof the hands of the legislative power, that is, of the king; and\nplaced him in the power and under the protection of his peers, and\nthe common law alone; that, in short, Magna Carta suffered no\nman to be punished for violating any enactment of the legislative\npower, unless the peers or equals of the accused. freely consented\nto it, or the common law authorized it; that the legislative power,\nof itself, was wholly incompetent to require the conviction or\npunishment of a man for any offence whatever.\n\nWhether Magna Carta allowed of any other trial than by jury.\n\nThe question here arises, whether \"legem terrae did not allow of\nsome other mode of trial than that by jury.\n\nThe answer is, that, at the time of Magna Carta, it is not probable,\n(for the reasons given in the note,) that legem terrae authorized, in\ncriminal cases, any other trial than the trial by jury; but, if it did, it\ncertainly authorized none but the trial by battle, the trial by ordeal,\nand the trial by compurgators. These were the only modes of trial,\nexcept by jury, that had been knownin England, in criminal cases,\nfor some centuries previous to Magna Carta. All of them had\nbecome nearly extinct at the time of Magna Carta, and it is not\nprobable that they were included in \"legem terrae,\" as that term is\nused in that instrument. But if they were included in it, they have\nnow been long obsolete, and were such as neither this nor any\nfuture age will ever return to. [23]\n\nFor all practical puposes of the present day, therefore, it may be\nasserted that Magna Carta allows no trial whatever but trial by\njury.\n\nWhether Magna Carta allowed sentence to be fixed otherwise than\nby the jury.\n\nStill another question arises on the words legem terrae, viz.,\nwhether, in cases where the question of guilt was determined by\nthe jury, the amount of punishment may not have been fixed by\nlegem terrae, the Common Law, instead of its being fixed by the\njury.\n\nI think we have no evidence whatever that, at the time of Magna\nCarta, or indeed at any other time, lex terrae, the common law,\nfixed the punishment in cases where the question of guilt was tried\nby a jury; or, indeed, that it did in any other case. Doubtless certain\npunishments were common and usual for certain offences; but I do\nnot think it can be shown that the common law,  the  lex terrae,\nwhich the king was sworn to maintain, required any one specific\npunishment, or any precise amount of punishment, for any one\nspecific offence. If such a thing be claimed, it must be shown, for\nit cannot be presumed. In fact, the contrary must be presumed,\nbecause, in the nature of things, the amount of punishment proper\nto be inflicted on any particular case, is a matter requiring the\nexercise of discretion at the time, in order to adapt it to the moral\nquality of the offence, which is different in each case, varying with\nthe mental and moral constitutions of the offenders, and the\ncircumstances of temptation or provocation. And Magna Carta\nrecognizes this principle distinctly, as has before been shown, in\nproviding that freemen, merchants, and villeins, \"shall not be\namerced for a small crime, but according to the degree of the\ncrime; and for a great crime in proportion to the magnitude of it,\"\nand that \"none of the aforesaid amercements shall be imposed (or\nassessed) but by the oaths of honest men of the neighborhood;\"\nand that \"earl and barons shall not be amerced but by their peers,\nand according to the quality of the offence.\"\n\nAll this implies that the moral quality of the offence was to be\njudged of at the rial, and that the punishment was to be fixed by\nthe discretion of the peers, or jury, and not by any such unvarying\nrule as a common law rule would be.\n\nI think, therefore, it must be conceded that, in all cases, tried by a\njury, Magna Carta intended that the punishment should be fixed by\nthe jury, and not by the common law, for these several reasons.\n\n1. It is uncertain whether the common law fixed the punishment of\nany offence whatever.\n\n2. The words  \"per judicium parium suorum,\" according to the\nsentence of his peers,  imply that the jury fixed the sentence in\nsome  cases tried by them; and if they fixed the sentence in some\ncases, it must be presumed they did in all, unless the contrary be\nclearly shown.\n\n3. The express provisions of Magna Carta, before adverted to, that\nno amercements, or fines, should be imposed upon. freemen,\nmerchants, or villeins, \"but by the oath of honest men of the\nneighborhood,\" and \"according to the degree of the crime,\" and\nthat \"earls and barons shout not be amerced but by their peers, and\naccording to the quality of the offence,\"  proves that, at least, there\nwas no common law fixing the amount of  fines, or, if there were,\nthat it was to be no longer in force. And if there was no common\nlaw fixing the amount of fines, or if it was to be no longer in force,\nit is reasonable to infer, (in the absence of all evidence to the\ncontrary,) either that the common law did not fix the amount of\nany other punishment, or that it was to be no longer in force for\nthat purpose. [25]\n\nUnder the Saxon laws, fines, payable to the injured party, seem to\nhave been the common punishments for all offences. Even murder\nwas punishable by a fine payable to the relatives of the deceased.\nThe murder of the king even was punishable by fine. When a\ncriminal was unable to pay his One, his relatives often paid it for\nhim. But if it were not paid, he was put out of the protection of the\nlaw, and the injured parties, (or,in the case of murder, the kindred\nof the deceased,)were allowed to inflict such punishment as they\npleased. And if the relatives of the criminal protected him, it was\nlawful to take vengeance on them also. Afterwards the custom\ngrew up of exacting fines also to the king as a punishment for\noffences.  [26]\n\nAnd this latter was, doubtless, the usual punishment at the time of\nMagna Carta, as is evidenced by the fact that for many years\nimmediately following Magna Carta, nearly or quite all statutes\nthat prescribed any punishment at all, prescribed that the offender\nshould \"be grievously  amerced,\" or \"pay a great fine to the king,\"\nor a \"grievous ransom,\"     with the alternative in some cases\n(perhaps understood in all) of imprisonment, banishment, or\noutlawry, in case of non-payment. [27]\n\nJudging, therefore, from the special provisions in Magna Carta,\nrequiring fines, or amercements, to be imposed only by juries,\n(without mentioning any other punishments;) judging, also, from\nthe statutes which immediately followed Magna Carta, it is\nprobable that, the Saxon custom of punishing all, or nearly all,\noffences by fines, (with the alternative to the criminal of being\nimprisoned, banished, or outlawed, and exposed to private\nvengeance, in case of non-payment,) continued until the time of\nMagna Carta; and that in providing expressly that fines should be\nfixed by the juries, Magna Carta provided for nearly or quite all\nthe punishments that were expected to be inflicted; that if there\nwere to be any others, they were to be fixed by the juries; and\nconsequently that nothing was left to be fixed by \"legem terrae.\"\nBut whether the common law fixed the punishment of any\noffences, or not, is a matter of little or no practical importance at\nthis day; because we have no idea of going back to any common\nlaw punishments of six hundred years ago, if, indeed, there were\nany such at that time. It is enough for us to know   and this is what\nis material for us know   that the jury fixed the punishments, in all\ncases, unless they were fixed by the common law; that Magna\nCarta allowed no punishments to be prescribed by statute   that is,\nby the legislative power   nor in any other manner by the king, or\nhis judges, in any case whatever; and, consequently, that all\nstatutes prescribing particular punishmnts for particular offences,\nor giving the king's judges any authority to fix punishments, were\nvoid.\n\nIf the power to fix punishments had been left in the hands of the\nking, it would have given him a power of oppression, which was\nliable to be greatly abused; which there was no occasion to leave\nwith him; and which would have been incongruous with the whole\nobject of this chapter of Magna Carta; which object was to take all\ndiscretionary or arbitrary power over individuals entirely out of the\nhands of the king, and his laws, and entrust it only to the common\nlaw, and the peers, or jury   that is, the people. What lex terrae\ndid authorize.\n\nBut here the question arises, What then did legem terrae\" authorize\nthe king, (that is, the government,) to do in the case of an accused\nperson, if it neither authorized any other trial than that by jury, nor\nany other punishments than those fixed by juries?\n\nThe answer is, that, owing to the darkness of history on the point,\nit is probably wholly impossible, at this day, to state, with any\ncertainty or precision, anything whatever that the legem terrae of\nMagna Carta did authorize the king, (that is, the government,) to\ndo, (if, indeed, it authorized him to do anything,) in the case of\ncriminals, other than to have them, tried and sentenced by their\npeers, for common law crimes; and to carry that sentence into\nexecution.\n\nThe trial by jury was a part of legem terrae, and we have the means\nof knowing what the trial by jury was. The fact that the jury were\nto fix the sentence, implies that they were to try the accused;\notherwise they could not know what sentence, or whether any\nsentence, ought to be inflicted upon him. Hence it follows that the\njury were to judge of everything involved in the trial; that is, they\nwere to judge of the nature of the offence, of the admissibility and\nweight of testimony, and of everything else whatsoever that was of\nthe essence of the trial. If anything whatever could be dictated to\nthem, either of law or evidence, the sentence would not be theirs,\nbut would be dictated to them by the power that dictated to them\nthe law or evidence. The trial nd sentence, then, were wholly in the\nhands of the jury.\n\nWe also have sufficient evidence of the nature of the oath\nadministered to jurors in criminal cases. It was simply, that they\nwould neither convict the innocent, nor acquit the guilty. This was\nthe oath in the Saxon times, and probably continued to be until\nMagna Carta.\n\nWe also know that, in case of conviction, the sentence of the jury\nwas not necessarily final; that the accused had the right of appeal\nto the king and his judges, and to demand either a new trial, or an\nacquittal, if the trial or conviction had been against law. So much,\ntherefore, of the legem terrae of Magna Carta, we know with\nreasonable certainty.\n\nWe also know that Magna Carta provides that \"No bailiff (balivus)\nshall hereafter put any man to his law, (put him on trial,) on his\nsingle testimony, without credible witnesses brought to support it.\"\nCoke thinks \"that under this word balivus, in this act, is\ncomprehended every justice, minister of the king, steward of the\nking, steward and bailiff.\" (2 Inst. 44.) And in support of this idea\nhe quotes from a very ancient law book, called the Mirror of\nJustices, written in the time of Edward I., within a century after\nMagna Carta. But whether this were really a common law\nprinciple, or whether the provision grew out of that jealousy of the\ngovernment which, at the time of Magna Carta, had reached its\nheight, cannot perhaps now be determined.\n\nWe also know that, by Magna Carta, amercements, or fines, could\nnot be imposed to the ruin of the criminal; that, in the case of a\nfreeman, his contenement, or means of subsisting in the condition\nof a freeman, must be saved to him; that, in the case of a merchant,\nhis merchandise must be spared; and in the case of a villein, his\nwaynage, or plough-tackle and carts. This also is likely to have\nbeen a principle of the common law, inasmuch as, in that rude age,\nwhen the means of gettin employment as laborers were not what\nthey are now, the man and his family would probably have been\nliable to starvation, if these means of subsistence had been taken\nfrom him.\n\nWe also know, generally, that, at the time of Magna Carta, all acts\nintrinsically criminal, all trespasses against persons and property,\nwere crimes, according to lex terra, or the common law.\nBeyond the points now given, we hardly know anything, probably\nnothing with certainty, as to what the \"legem terran\" of Magna\nCarta did authorize, in regard to crimes. There is hardly anything\nextant that can give us any real light on the subject.\nIt would seem, however, that there were, even at that day, some\ncommon law principles governing arrests; and some common law\nforms and rules as to holding a man for trial, (by bail or\nimprisonment;) putting him on trial, such as by indictment or\ncomplaint; summoning and empanelling jurors, &c;., &c;.\nWhatever these common law principles were, Magna Carta\nrequires them to be observed; for Magna Carta provides for the\nwhole proceedings, commencing with the arrest, (\"no freeman\nshall be arrested,\" &c;.,) and ending with the execution of the\nsentence. And it provides that nothing shall be done, by the\ngovernment, from beginning to end, unless according to the\nsentence of the peers, or \"legem terrae,\" the common law. The trial\nby peers was a part of legem terrae, and we have seen that the\npeers must necessarily have governed the whole proceedings at the\ntria1. But all the proceedings for arresting the man, and bringing\nhim to trial, must have been had before the case could come under\nthe cognizance of the peers, and they must, therefore, have been\ngoverned by other rules than the discretion of the peers. We may\nconjecture, although we cannot perhaps know with much certainty,\nthat the lex terrae, or common law, governing these other\nproceedings, was somewhat similar to the common law principle,\non the same points, at the present day. Such seem to be the\nopinions of Coke, who says that the phrase nisi per legem terrae\nmeans unless by due process of law. Thus, he says: \"Nisi per legem\nterrae. But by the law of the land.\n\nFor the true sense and exposition of these words, see the statute f\n37 Edw. III., cap. 8, where the words, by the law of the land, are\nrendered without due process of law; for there it is said, though it\nbe contained in the Great Charter, that no man be taken,\nimprisoned, or put out of his freehold, without process of the law;\nthat is, by indictment or presentment of good and lawful men,\nwhere such deeds be done in due manner, or by writ original of the\ncommon law.\n\n\"Without being brought in to answer but by due process of the\ncommon law.\"\n\n\"No man be put to answer without presentment before justices, or\nthing of record, or by due process, or by writ original, according to\nthe old law of the land.\"   2 Inst. 50.\n\nThe foregoing interpretations of the words nisi per legem terrae\nare corroborated by the following statutes, enacted in the next\ncentury after Magna Carta.\n\n\"That no man, from henceforth; shall be attached by any\naccusation, nor forejudged of life or limb, nor his land, tenements,\ngoods, nor chattels, seized into the king's hands, against the form\nof the Great Charter, and the law of the land.\"   St, 5 Edward III.,\nCh. 9. (1331.)\n\n\"Whereas it is contained in the Great Charter of the franchises of\nEngland, that none shall be imprisoned, nor put out of his freehold,\nnor of his franchises, nor free customs, unless it be by the law of\nthe land; it is accorded, assented, and established, that from\nhenceforth none shall be taken by petition, or suggestion made to\nour lord the king, or to his council, unless it be by indictment or\npresentment of good and lawful people of the same neighborhood\nwhere such deeds be done in due manner, or by process made by\nwrit original at the common law; nor that none be put out of his\nfranchises, nor of his freehold, unless he be duly brought into\nanswer, and forejudged of the same by the course of the Law; and\nif anything be done against the same, it shall be redressed, and\nholden for none.\"   8t. 95 Edward III., Ch. 4. (1350.)\n\n\"That no man, of what estate or condition that he be, shall be put\nout of land or tenement, nor taken, nor imprisond, nor disinherited,\nnor put to death, without being brought in answer by due process\nof law.\"   8t. 28 Aboard III., Ch. 3. (1354.)\n\n\"That no man be put to answer without presentment before\njustices, or matter of record, or by due process and writ original,\naccording to the old law of the land. And if anything from\nhenceforth be done to the contrary, it shall be void in law, and\nholden for error.\"   8t. 42 Edward IIL, Ch. 3. (1368.)\n\nThe foregoing interpretation of the words nisi per legem terrae\nthat is, by due process of law   including indictment, &c;., has\nbeen adopted. as the true one by modern writers and courts; as, for\nexample, by Kent, (2 Comm. 13,) Story, (3 Comm. 661,) and the\nSupreme Court of New York, (19 Wendell, 6T6; 4 Hill, 146.)\nThe fifth amendment to the constitution of the United States seems\nto have been framed on the same idea, inasmuch as it provides that\n\"no person shall be deprived of life, liberty, or property, without\ndue process of law.\" [28]\n\nWhether the word VEL should be rendered by OR, or by AND.\n\nHaving thus given the meanings, or rather the applications, which\nthe words vel per legem terrae will reasonably, and perhaps must\nnecessarily, bear, it is proper to suggest, that it has been supposed\nby some that the word vel, instead of being rendered by or, as it\nusually is, ought to be rendered by and, inasmuch as the word vel\nis often used for et, and the whole phrase nisi per judicium parian\nsuorun, vel per legem terrae, (which would then read, unless by the\nsentence of his peers, and the law of the land,) would convey a\nmore intelligible and harmonious meaning than it otherwise does.\n\nBlackstone suggests that this may be the true reading. (Charters, p.\n41.) Also Mr. Hallam, who says:\"Nisi per legale judicium parium\nsuorum, vel per legem terra;. Several explanations have been\noffered of the alternative clause; which some have referred to\njudgment by default, or demurrer; others to the process of\nattachment for contempt. Certainly there are many legal\nprocedures besides trial by jury, through which a party's goods or\nperson may be taken. But one may doubt whether these were in\ncontemplation of the framers of Magna Carta. In an entry of the\nCharter of 1217 by a contemporary hand, preserved in the\nTown-clerk's office in London, called Liber Custumarum et\nRegum antiquarum, a various reading, et per legem terrae, occurs.\nBlackstone's Charters, p. 42 (41.) And the word vel is so frequently\nused for et, that I amnot wholly free from a suspicion that it  was\nso intended in this place. The meaning will be, that no person shall\nbe disseized, &c;., except upon a lawful cause of action, found by\nthe verdict of a jury. This really seems as good as any of the\ndisjunctive interpretatios; but I do not  offer it with much\nconfidence.\"   2 Hallam's Middle Ages,   Ch. 8, Part 2, p. 449,\nnote.\"  [29]\n\nThe idea that the word vel,  should be rendered by and, is\ncorroborated, if not absolutely confirmed, by the following passage\nin Blackstone, which has before been cited. Speaking of the trial\nby jury, as established by Magna Carta, he calls it, \"A privilege\nwhich is couched in almost the same words with that of the\nEmperor Conrad two hundred years before: 'nemo beneficium\nsuum perdat, nisi secundum consuetudinem antecessorum\nnostrorum, et,  judicium parium suorum. ' (No one shall lose his\nestate unless according to the custom of our ancestors, and,  the\njudgment of his peers.)   3 Blackstone, 350.,\n\nIf the word vel,  be rendered by and,,  (as I think it must be, at least\nin some cases,) this chapter of Magna Carta will then read that no\nfreeman shall be arrested or punished, \"unless according to the\nsentence of his peers, and,  the law of the land.\"\n\nThe difference between this reading and the other is important. In\nthe one case, there would be, at first view, some color of ground\nfor saying that a man might be punished in either of two ways, viz.,\naccording to the sentence of his peers, or according to the law of\nthe land. In the other case, it requires both the sentence of his peers\nand,  the law of the laud (common law) to authorize his\npunishment.\n\nIf this latter reading be adopted, the provision would seem to\nexclude all trials except trial by jury, and all causes of action\nexcept those of the common law.,\n\nBut I apprehend the word vel,  must be rendered both by and,,  and\nby or;,  that in cases of a judgment,,  it should be rendered by and,,\nso as to require the concurrence both of \"the judgment of the peers\nand,  the law of the land,\" to authorize the king to make execution\nupon a party's goods or person; but that in cases of arrest and\nimprisonment, simply for the purpose of bringing a man to trial,\nvel,  should be rendered by or, , because there can have been no\njudgment of a jury in such a case, and \"the law of the land\" must\ntherefore necessarily be the only guide to, and restraint upn, the\nking. If this guide and restraint were taken away, the king would\nbe invested with an arbitrary and most dangerous power in.\nmaking arrests, and confining in prison, under pretence of an\nintention to bring to trial.\n\nHaving thus examined the language of this chapter of Magna Cart,\nso far as it relates to criminal cases, its legal import may be stated\nas follows, viz.:\n\nNo freeman shall be arrested, or imprisoned, or deprived of his\nfreehold, or his liberties, or free customs, or be outlawed, or\nexiled, or in any manner destroyed, (harmed,) nor will we (the\nking) proceed. against him, nor send any one against him, by force\nor arms, unless according to (that is, in execution. of) the sentence\nof his peers, and (or or, as the case may require) the Common Law\nof England, (as it was at the time of Magna Carta, in 1215.)\n\n[1] Hume, Appendix 2,\n\n[2] Crabbe's History of the English Law, 236.\n\n[3] Coke says, \"The king of England is armed with divers councils,\none whereof is called commune concilium, (the common council,)\nand that is the court of parliament and so it is legally called in\nwrits and judicial proceedings comanche concilium regni\nAnglicae, (the common council of the kingdom of England.) And\nanother is called magnum concilium, (great council;) this is\nsometimes applied to the upper house of parliament, and\nsometimes, out of parliament time, to the peers of the realm, lords\nof parliament, who are called magnum concilium regis, (the great\ncouncil of the king;) [4] Thirdly, (as every man knoweth,) the king\nhath a privy council for matters of state. * * The fourth council of\nthe king are his judges for law matters.\" 1 Coke's Institutes, 110 a.\n\n[4] The Great Charter of Henry III., (1216 and 1225,) confirmed by\nEdward I., (1297,) makes no provision whatever for, or mention\nof, a parliament, unless the provision, (Ch. 37,) that \"Escuage, (a\nmilitary contribution,) from henceforth shall be taken like as it was\nwont to be in the time of King Henry our grandfather,\" mean that a\nparliament shall be summoned for that purpose.\n\n[5]The Magna Carta of John, (Ch. 17 and 18,) defines those who\nwere entitled to be summoned to parliament, to wit, \"The\nArchbishops, Bishops, Abbots, Earls, and Great Barons of the\nRealm, * * and all others who hold of us in chief.\" Those who held\nland of the king in chief included none below the rank of knights.\n\n[6] The parliaments of that time were, doubtless, such as Carlyle\ndescribes them, when he says, \"The parliament was at first a most\nsimple assemblage, quite cognate to the situation; that Red\nWilliam, or whoever had taken on him the terrible task of being\nKing of England, was wont to invite, oftenest about Christmas\ntime, his subordinate Kinglets, Barons as he called them, to give\nhim the pleasure of their company for a week or two; there, in\nearnest conference all morning, in freer talk over Christmas cheer\nall evening, in some big royal hall of Westminster, Winchester, or\nwherever it might be, with log fires, huge rounds of roast and\nboiled, not lacking malmsey and other generous liquor, they took\ncounsel concerning the arduous matters of the kingdom.\"\n\n[7] Hume, Appendix 2.\n\n[8] This point will be more fully established hereafter.\n\n[9] It is plain that the king and all his partisans looked upon the\ncharter as utterly prostrating the king's legislative supremacy\nbefore the discretion of juries. When the schedule of liberties\ndemanded by the barons was shown to him, (of which the trial by\njury was the most important, because it was the only one that\nprotected all the rest,) \"the king, falling into a violent passion,\nasked, Why the barons did not with these exactions demand his\nkingdom? * * and with a solemn oath protested, that he would\nnever grant such liberties as would make himself a slave.\" * * But\nafterwards, \"seeing himself deserted, and fearing they would seize\nhis castles, he sent the Earl of Pembroke and other faithful\nmessengers to them, to let them know he would grant them the\nlaws and liberties they desired.\" * * But after the charter had been\ngranted, \"the king's mercenary soldiers, desiring war more than\npeace, were by their leaders continually whispering in his ears, that\nhe was now no longer king, but the scorn of other princes; and that\nit was more eligible to be no king, than such a one as he.\" * * He\napplied to the Pope, that he might by his apostolic authority make\nvoid what the barons had done.* * At Rome he met with what\nsuccess he could desire, where all the transactions with the barons\nwere fully represented to the Pope, and the Charter of Liberties\nshown to him, in writing; which, when he had carefully perused,\nhe, with a furious look, cried out, What! Do the barons of England\nendeavor to dethrone a king, who has taken upon him the Holy\nCross, and is under the protection of the Apostolic See, and would\nthey force him to transfer the dominions of the Roman Church to\nothers? By St. Peter, this injury must not pass unpunished. Then\ndebating the matter with the cardinals, he, by a definitive sentence,\ndamned and cassated forever the Charter of Liberties, and sent the\nking a bull containing that sentence at large.\"   Echard's History of\nEngland, p. 106-7\n\nThese things show that the nature and effect of the charter were\nwell understood by the king and his friends; that they all agreed\nthat he was effectually stripped of power. Yet the legislative power\nhad not been taken from him; but only the power to enforce his\nlaws, unless juries should freely consent to their enforcement.\n\n[10] The laws were, at that time, all written in Latin.\n\n[11]\"No man shall be condemned at the king\"s suit, either before\nthe king in his bench, where pleas are coram rege, (before the\nking,) (and so are the words nec super eum ibimus, to be\nunderstood,) nor before any other commissioner or judge\nwhatsoever, and so are the words nec super eum mittemus, to be\nunderstood, but by the judgment of his peers, that is, equals, or\naccording to the law of the land.\"   2 Coke's Inst., 46.\n\n[12] Perhaps the assertion in the text should be made with this\nqualification   that the words \"per legem terrae,\" (according to the\nlaw of the land,) and the words \"per legale judiciun parium\nsuorum,\" (according to the legal judgment of his peers,) imply that\nthe king, before proceeding to any executive action, will take\nnotice of \"the law of the land,\" and of the legality of the judgment\nof the peers, and will execute upon the prisoner nothing except\nwhat the law of the land authorizes, and no judgments of the peers,\nexcept legal ones. With this qualification, the assertion in the text\nis strictly correct   that there is nothing in the whole chapter that\ngrants to the king, or his judges, any judicial power at all. The\nchapter only describes and limits his executive power.\n\n[13] See Blackstone'a Law Tracts, page 294, Oxford Edition\n\n[14] These Articles of the Charter are given in Blackstone's\ncollection of Charters, and are also printed with the statutes of the\nRealm. Also in Wilkins' Laws of the Anglo- Saxons, p. 350.\n\n[15] Lingard says, \" The words, ' We will not destroy him nor will\nwe go upon him, nor will we send upon him,' have been very\ndifferently expounded by different legal authorities. Their real\nmeaning may be learned from John himself, who the next year\npromised by his letters patent,... nec super eos per vim vel per\narma ibimus, nisi per legem regni nostri, vel per judicium parium\nsuorum in curia nostra, (nor will we go upon them by force or by\narms, unless by the law of our kingdom, or the judgment of their\npeers in our court.) Pat. 16 Johan, apud Drad. 11, app. no. 124.\n\nHe had hitherto been in the habit of going with an armed force, or\nsending an armed force on the lands, and against the castles, of all\nwhom he knew or suspected to be his secret enemies, without\nobserving any form of law.\"   3 Lingard, 47 note.\n\n[16] \"Judgment, judicium. * * The sentence of the law,\npronounced by the court, upon the matter contained in the record.\"\n  8 Blackstone, 895. Jacob's Law Dictionary. . Tomlin's do.\n\n\"Judgment is the decision or sentence of the law, given by a court\nof justice or other competent tribunal, as the result of the\nproceedings instituted therein, for the redress of an injury.\"\nBouvier's Law Dict.\n\n\"Judgment, judicium. * * Sentence of a judge against a criminal. *\n* Determination, decision in general.\"   Bailey's Dict.\n\n\"Judgment. * * In a legal sense, a sentence or decision pronounced\nby authority of a king, or other power, either by their own mouth,\nor by that of their judges andofficers, whom they appoint, to\nadminister justice in their stead.\"   Chambers' Dict.\n\n\"Judgment. * * In law, the sentence or doom pronounced in any\ncase, civil orcriminal, by the judge or court by which it is tried.\"\nWebster's Dict.\n\nSometimes the punishment itself is called judicium, judgment; or,\nrather, it was at the time of Magna Carta. For example, in a statute\npassed fifty-one years after Magna Carta, it was said that a baker,\nfor default in the weight of his bread, \" debeat amerciari vel subire\njudicium pillorie;\" that is, ought to be amerced, or suffer the\npunishment, or judgment, of the pillory. Also that a brewer, for\n\"selling ale contrary to the assize,\" \"debeat amerciari, vel pati\njudicium tumbrelli \"; that is, ought to be amerced, or suffer the\npunishment, or judgment, of the tumbrel.   51 Henry 3, St. 6.\n(1266.)\n\nAlso the \"Statutes of uncertain date,\" (but supposed to be prior to\nEdward III., or 1326,) provide, in chapters 6, 7, and 10, for\n\"judgment of the pillory.\"   See 1 Rughead's Statutes, 187, 188. 1\nStatutes of the Realm, 203.\n\nBlackstone, in his chapter \"Of Judgment, and its Consequences,\"\nsays, \"Judgment (unless any matter be offered in arrest thereof) follows\nupon conviction f being the pronouncing of that punishment which\nis expressly ordained by law.\"   Blackstone's Analysis of the Laws\nof England, Book 4, Ch. 29, Sec. 1. Blackstone's Law Tracts, 126.\n\nCoke says, \"Judicium .. the judgment is the guide and direction of\nthe execution.\" 3 Inst. 210.\n\n[17] This precedent from Germany is good authority, because the\ntrial by jury was in use, in the northern nations of Europe\ngenerally, long before Magna Carta, and probably from time\nimmemorial; and the Saxons and Normans were familiar with it\nbefore they settled in England.\n\n[18] Beneficium was the legal name of an estate held by a feudal\ntenure. See Spelman's Glossary.\n\n[19]] Contenement of a freeman was the means of living in the\ncondition of a freeman.\n\n[20] Waynage was a villein's plough-tackle and carts.\n\n[21] Tomlin says, \"The ancient practice was, when any such fine\nwas imposed, to inquire by a jury quantum inde regi dare valeat\nper annum, salva sustentatione sua et uxoris et libe- rorum suorum,\n(how much is he able to give to the king per annum, saving his\nown maintenance, and that of his wife and children). And since the\ndisuse of such inquest, it is never usual to assess a larger fine than\na man is able to pay, without touching the implements of his\nlivelihood; but to inflict corporal punishment, or a limited\nimprisonment, instead of such a fine as might amount to\nimprisonment for life. And this is the reason why fines in the\nking's courts are frequently denominated ransoms, because the\npenalty must otherwise fall upon a man's person, unless it be\nredeemed or ransomed by a pecuniary fine.\"   Tomlin's Law Dict.,\nword Fine.\n\n[22] Because juries were to fix the sentence, it must not be\nsupposed that the king was obliged to carry the sentence into\nexecution; but only that he could not go beyond the sentence. He\nmight pardon, or he might acquit on grounds of law, not\nwithstanding the sentence; but he could not punish beyond the\nextent of the sentence. Magna Carta does not prescribe that the\nking shall punish according to the sentence of the peers; but only\nthat he shall not punish \"unless according to\" that sentence. He\nmay acquit or pardon, notwithstanding their sentence or judgment;\nbut he cannot punish, except according to their judgment.\n\n[23] The trial by battle was one in which the accused challenged\nhis accuser to single combat, and staked tbe question of his guilt or\ninnocence on the result of the duel. This trial was introduced into\nEngland by the Normans, within one hundred and fifty years\nbefore Magna Carta. It was not very often resorted to even by the\nNormans themselves; probably never by the Anglo-Saxons, unless\nin their controversies with the Normans. It was strongly\ndiscouraged by some of the Norman princes, particularly by Henry\nII., by whom the trial by jury was especially favored. It is probable\nthat the trial by battle, so far as it prevailed at all in England, was\nrather tolerated as a matter of chivalry, than authorized as a matter\nof law. At any rate, it is not likely that it was included in the\n\"legem terrae\" of Magna Carta, although such duels have\noccasionally occurred since that time, and have, by some, been\nsupposed to be lawful. I apprehend that nothing can be properly\nsaid to be a part of lex terrae, unless it can be shown either to have\nbeen of Saxon origin, or to have been recognized by Magna Carta.\n\nThe trial by ordeal was of various kinds. In one ordeal the accused\nwas required to take hot iron in his hand; in another to walk\nblindfold among red-hot ploughshares; in another to thrust his arm\ninto boiling water; in another to be thrown, with his hands and feet\nbound, into cold water; in another to swallow the morsel of\nexecration; in the confidence that his guilt or innocence would be\nmiraculously made known. This mode of trial was nearly extinct at\nthe time of Magna Carta, and it is not likely that it was included in\n\"legem terrae,\" as that term is used in that instrument. This idea is\ncorroborated by the fact that the trial by ordeal was specially\nprohibited only four years after Magna Carta, \"by act of Parliament\nin 3 Henry III., according to Sir Edward Coke, or rather by an\norder of the king in council.\"   3 Blacks,one 345, note.\n\nI apprehend that this trial was never forced upon accused persons,\nbut was only allowed to them, as an appeal to God, from the\njudgment of a jury. [24]\n\nThe trial by compurgators was one in which, if the accused could\nbring twelve of his neighbors, who would make oath that they\nbelieved him innocent, he was held to be so. It is probable that this\ntrial was really the trial by jury, or was allowed as an appeal from\na jury. It is wholly improbable that two diferent modes of trial, so\nnearly resembling each other as this and the trial by jury do, should\nprevail at the same time, and among a rude people, whose judicial\nproceedings would naturally be of the simplest kind. But if this\ntrial really were any other than the trial by jury, it must have been\nnearly or quite extinct at the time of Magna Carta; and there is no\nprobability that it was included in \"legem terrae.\"\n\n[24] Hallam says, \"It appears as if the ordeal were permitted to\npersons already convicted by the verdict of a jury.\"   2 Middle\nAges, 446, note.\n\n[25] Coke attempts to show that there is a distinction between\namercements and fines   admitting that amercements must be\nfixed by one's peers, but, claiming that, fines may be fixed by the\ngovernment. (2 Inst. 27, 8 Coke's Reports 38) But there seems to\nhave been no ground whatever for supposing that any such\ndistinction existed at the time of Magna Carta. If there were any\nsuch distinction in the time of Coke, it had doubtless grown up\nwithin the four centuries that had elapsed since Magna Carta, and\nis to be set down as one of the numberless inventions of\ngovernment for getting rid of the restraints of Magna Carta, and\nfor taking men out of the protection of their peers, and subjecting\nthem to such punishments as the government chooses to inflict.\n\nThe first statute of Westminster, passed sixty years after Magna\nCarta, treats the fine and amercement as synonymous, as follows.\n\n\"Forasmuch as the common fine and amercement of the whole\ncounty in Eyre of the justices for false judgments, or for other\ntrespass, is unjustly assessed by sheriffs and baretors in the shires,\n* * it is provided, and the king wills, that frown henceforth such\nsums shall be assessed before the justices in Eyre, afore their\ndeparture, by the oath of knights and other honest men,\" &c.   3\nEdward I., Ch. 18. (1275)\n\nAnd in many other statutes passed after Magna Carta, the terms\nfine and amercement seem to be used indifferently, in prescribing\nthe punishments for offences. As late as 1461, (246 years after\nMagna Carta,) the statute 1 Edward IV., Ch 2, speaks of \"fines.,\nransoms, and amerciaments\" as being levied upon criminals, as if\nthey were the common punishments of offences.\n\nSt. 2 and 3 Philip and Mary, Ch 8, uses the terms, \"fines,\nforfeitures, and amerciaments\" five times. (1555)\n\nSt. 5 Elizabeth, Ch. 13, Sec. 10, uses the terms \"fines, forfeitures,\nand amerciaments.\"\n\nThat amercements were fines, or pecuniary punishments, inflicted\nfor offences, is proved by the following statutes, (all supposed to\nhave been passed within one hundred and fifteen years after\nMagna Cart,) which speak of amercements as a species of\n\"judgment,\" or punishment, and as being inflicted for the same\noffences as other \"judgments.\"\n\nThus one statute declares that a baker, for default in the weight of\nhis bread, \"ought to be amerced, or suffer the judgment of the\npillory; and that a brewer, for \"selling ale contrary to the assize,\"\n\"ought to be amerced, or suffer the judgment of the tumbrel,\" -- 51\nHenry III., St. 6. (1266)\n\nAmong the \"Statutes of Uncertain Date,\" but supposed to be prior\nto Edward III., (1326), are the following:\n\nChap. 6 provides that \"if a brewer break the assize, (fixing the\nprice of ale,) the first, second, and third time, he shall be amerced;\nbut the fourth time he shall suffer judgment of the pillory without\nredemption.\"\n\nChap. 7 provides that \"a butcher that selleth swine's flesh\nmeaseled, or flesh dead of the murrain, or that buyeth flesh of\nJews, and selleth the same unto Christians, after he shall be\nconvict thereof, for the first time he shall be grievously amerced;\nthe second time he shall suffer judgment of the pillory; and the\nthird time he shall be imprisoned and make fine; and the fourth\ntime he shall forswear the town.\"\n\nChap. 10, a statute against forestalling, provides that, \"He that is\nconvict thereof, the first time shall be amerced, and shall lose the\nthing so bought, and that according to the custom of the town; he\nthat is convicted the second time shall have judgment of the\npillory; at the third time he shall be imprisoned and make fine; the\nfourth time he shall abjure the town. And this judgment shall be\ngiven upon all manner of forestallers, and likewise upon them that\nhave given them counsel, help, or favor.\"   1 Ruffheads Statutes,\n187, 188. 1 Statutes of the Realm, 203.\n\n[26] 1 Hume, Appendix, l.\n\n[27] Blackstone says, \"Our ancient Saxon laws nominally punished\ntheft with death, if above the value of twelve pence; but the\ncriminal was permitted to redeem his life by a pecuniary ransom,\nas among their ancestors, the Germans, by a stated number of\ncattle. Bit in the ninth year of Henry the First (1109,) this power of\nredemption was taken away, and all persons guilty of larceny\nabove the value off twelve pence were directed to be hanged,\nwhich law continues in force to this day.\"   4 Blackstone, 238\n\nI give this statement of Blackstone, because the latter clause may\nseem to militate with the idea, which the former clause\ncorroborates, viz., that at the time of Magna Carta, fines were the\nusual punishment of offenses. But I think there is no probability\nthat a law so unreasonable in itself, (unreasonable even after\nmaking all allowance for the difference in the value of money,)\nand so contrary to immemorial custom, could and did obtain any\ngeneral or speedy acquiescence among a people who cared little\nfor the authority of kings.\n\nMaddox, writing of the period from William the Conqueror to\nJohn, says: \"The amercement in criminal and common pleas,\nwhich were wont to be imposed during this first period and\nafterwards, were of so many several sorts, that it is not easy to\nplace them under distinct heads. Let them, for methods' sake, be\nreduced to the heads following: Amercements for or by reason of\nmurders and manslaughters, for misdemeanors, for disseisins, for\nrecreancy, for breach of assize, for defaults, for non-appearance,\nfor false judgment, and for not making suit, or hue and cry. To\nthem may be added miscellaneous amercements, for trespasses of\ndivers kinds.\"   1 Maddox' History of the Exchequer, 542.\n\n[28] Coke, in his exposition of the words legem terrae, gives quite\nin detail the principles of the common law governing arrests, and\ntakes it for granted that the words \"nisi per legem terre\" are\napplicable to arrests, as well as to the indictment, &c.   2 inst., 51,\n52.\n\n[29] I cite the above extract from Mr. Hallam solely for the sake of\nhis authority for rendering the word vel by and; and not by any\nmeans for the purpose of indorsing the opinion he suggests, that\nlegem terrae authorized \"judgments by default or demurrer,*'\nwithout the intervention of a jury. He seems to imagine that lex\nterrae, the common law, at the time of Magna Carta, included\neverything, even to the practice of courts, that is, at this day, called\nby the name of Common Law; whereas much of what is now\ncalled Common Law has grown up, by usurpation, since the time\nof Magna Carta, in palpable violation of the authority of that\ncharter. He says, \"Certainly there are many legal procedures,\nbesides trial by jury, through which a party's goods or person may\nbe taken.\" Of course there are now many such ways, in which a\nparty's goods or person are taken, besides by the judgment of a\njury; but the question is, whether such takings are not in violation\nof Magna Carta.\n\nHe seems to think that, in cases of \"judgment by default or\ndemurrer,\" there is no need of a jury, and thence to infer that\nlegem terrae may not have required a jury in those cases. But this\nopinion is founded on the erroneous idea that juries are required\nonly for determining contested facts, and not for judging of the\nlaw. In case of default, the plaintif must present a prima facie case\nbefore he is entitled to a judgment; and Magna Carta, (supposing it\nto require a jury trial in civil cases, as Mr. Hallam assumes that it\ndoes,) as much requires that this prima facie case, both law and\nfact, be made out to the satisfaction of a jury, as it does that a\ncontested case shall be.\n\nAs for a demurrer, the jury must try a demurrer (having the advice\nand assistance of the court, of course) as much as any other matter\nof law arising in a case.\n\nMr. Hallam evidently thinks there is no use for a jury, except\nwhere there is a \"trial\"   meaning thereby a contest on matters of\nfact. His language is, that \"there are many legal procedures,\nbesides trial by jury, through which a party's goods or person may\nbe taken.\" Now Magna Carta says nothing of trial by jury; but only\nof the judgment, or sentence, of a jury. It is only by inference that\nwe come to the conclusion that there must be a trial by jury. Since\nthe jury alone can give the judgment, or sentence, we infer that\nthey must try the case; because otherwise they would be\nincompetent, and would have no moral right, to give judgment.\nThey must, therefore, examine the grounds, (both of law and fact,)\nor rather try the grounds, of every action whatsoever, whether it be\ndecided on \"default, demurrer,\" or otherwise, and render their\njudgment, or sentence, thereon, before any judgment can be a legal\none, on which \"to take a party's goods or person.\" In short, the\nprinciple of Magna Carta is, that no judgment can be valid against\na party's goods or person, (not even a judgment for costs,) except a\njudgment rendered by a jury. Of course a jury must try every\nquestion, both of law and fact, that is involved in the rendering of\nthat judgment. They are to have the assistance and advice of the\njudges, so far as they desire them; but the judgment itself must be\ntheirs, and not the judgment of the court.\n\nAs to \"process of attachment for contempt,\" it is of course lawful\nfor a judge, in his character of a peace officer, to issue a warrant\nfor the arrest of a man guilty of a contempt, as he would for the\narrest of any other offender, and hold him to bail, (or, in default of\nbail, commit him to prison,) to answer for his offence before a\njury. Or he may order him into custody without a warrant when the\noffence is committed in the judge's presence.\n\nBut there is no reason why a judge should have the power of\npunishing, for contempt, any more than for any other offence. And\nit is one of the most dangerous powers a judge can have, because it\ngives him absolute authority in a court of justice, and enables him\nto tyrannize as he pleases over parties, counsel, witnesses, and\njurors. If a judge have power to punish for contempt, and to\ndetermine for himself what is a contempt, the whole administration\nof justice (or injustice, if he choose to make it so) is in his hands.\nAnd all the rights of jurors, witnesses, counsel, and parties, are\nheld subject to his pleasure, and can be exercised only agreeably\nto his will. He can of course control the entire proceedings in,\nand consequently the decision of, every cause, by restraining and\npunishing every one, whether party, counsel, witness, or juror,\nwho presumes to offer anything contrary to his pleasure.\n\nThis arbitrary power, which has been usurped and exercised by\njudges to punish for contempt, has undoubtedly had much to do in\nsubduing counsel into those servile, obsequious, and cowardly\nhabits, which so universally prevail among them, and which have\nnot only cost so many clients their rights, but have also cost the\npeople so many of their liberties.\n\nIf any summary, punishment for contempt be ever necessary, (as it\nprobably is not,) beyond exclusion for the time being from the\ncourt-room, (which should be done, not as a punishment, but for\nself-protection, and the preservation of order,) the judgment for it\nshould be given by the jury, (where the trial is before a jury,) and\nnot by the court, for the jury, and not the court, are really the\njudges. For the same reason, exclusion from the court-room should\nbe ordered only by the jury, in cases when the trial is before a jury,\nbecause they, being the real judges and triers of the cause, are\nentitled, if anybody, to the control of the court-room. In appeal\ncourts, where no juries sit, it may be necessary   not as a\npunishment, but for self-protection, and the maintenance of order\nthat the court should exercise the power of excluding a person, for\nthe time being, from the court-room; but there is no reason why\nthey should proceed to sentence him as a criminal, without his\nbeing tried by a jury.\n\nIf the people wish to have their rights respected and protected in\ncourts of justice, it is manifestly of the last importance that they\njealously guard the liberty of parties, counsel, witnesses, and\njurors, against all arbitrary power on the part of the court.\n\nCertainly Mr. Hallam may very well say that \"one may doubt\nwhether these (the several eases he has mentioned) were in\ncontemplation of the framers of Magna Carta \"  that is, as\nexceptions to the rule requiring that all judgmcnts, that are to be\nenforced \"against a party's goods or person,\", be rendered by a jury.\n\nAgain, Mr. Hallam says, if the word vel, be rendered by and,, \"the\nmeaning will be, that no person shall be disseized, &c., except\nupon a lawful cause of action.\", This is true; but it does not follow\nthat any cause of action, founded on statute only,, is therefore a\n\"lawful, cause of action,\" within the meaning of legem terrae, , or\nthe Common Law., Within the meaning of the legem terrae, of\nMagna Carta, nothing but a common law, cause of action is a\n\"lawful\", one.\n\n\nCHAPTER III. ADDITIONAL PROOFS OF THE RIGHTS AND\nDUTIES OF JURORS\n\nIf any evidence, extraneous to the history and language of Magna\nCarta, were needed. to prove that, by that chapter which\nguaranties the trial by jury, all was meant that has now been\nascribed to it, and that the legislation of the king was to be of\nno authority with the jury beyond what they chose to allow to it,\nand that the juries were to limit the punishments to be inflicted,\nwe should find that evidence in various sources, such as the laws,\ncustoms, and characters of their ancestors on the continent, and\nof the northern Europeans generally; in the legislation and customs\nthat immediately succeeded Magna Carta; in the oaths that have\nat different times been administered to jurors, &c;., &c;. This\nevidence can be exhibited here but partially. To give it all would\nrequire too much space and labor\n\nSECTION I\n\nWeakness of the Regal Authority.\n\nHughes, in his preface to his translation of Horne's \"Mirror of\nJustices,\" (a book written in the time of Edward I, 1272 to\n1307,) giving a concise view of the laws of England generally,\nsays:\n\n\"Although in the Saxon's time I find the usual words of the acts\nthen to have been edictum, (edict,) constitutio, (statute,)\nlittle mention being made of the commons, yet I further find\nthat, tum demum Leges vim et vigorem habuerunt, cum fuerunt\nnon modo institutae sed firmatae approbatione communitatis.\" (The\nlaws had force and vigor only when they were not only enacted,\nbut confirmed by the approval of the community.)\n\nThe Mirror of Justices itself also says, (ch. 1, sec. 3,) in\nspeaking \"Of the first Constitutions of the Ancient King.\"\n\n\"Many ordinances were made by many kings, until the time of the\nking that now is (Edward I.); the which ordinances were abused,\nor not used by many, nor very current, because they were not put\nin writing, and certainly published.\"   Mirror of Justices, p. 6.\n\nHallam says:\n\n\"The Franks, Lombards, and Saxons seem alike to have been\njealous of judicial authority; and averse to surrendering what concerned\nevery man's private right, out of the hands of his neighbors and\nequals.\"   1 Middle Ages, 271.\n\nThe \"judicial authority,\" here spoken of, was the authority of\nthe kings, (who at that time united the office of both\nlegislators and judges,), and not of a separate department of\ngovernment, called the judiciary, like what has existed in more\nmodern times. [1]\n\nHume says:\n\n\"The government of the Germans, and that of all the northern\nnations, who established themselves on the ruins of Rome, was\nalways extremely free; and those fierce people, accustomed to\nindependence and inured to arms, were more guided by\npersuasion, than authority, in the submission which they paid to their\nprinces. The military despotism, which had taken place n the\nRoman empire, and which, previously to the irruption of those\nconquerors, had sunk the genius of men, and destroyed every noble\nprinciple of science and virtue, was unable to resist the\nvigorous efforts of a free people, and Europe, as from a new\nepoch, rekindled her ancient spirit, and shook off the base\nservitude to arbitrary will and authority under which she had so\nlong labored. The free constitutions then established, however\nimpaired by the encroachments of succeeding princes, still\npreserve an air of independence and legal administration, which\ndistinguished the European nations; and if that part of the globe\nmaintain sentiments of liberty, honor, equity, and valor,\nsuperior to the rest of mankind, it owes these advantages chiefly\nto the seeds implanted by those generous barbarians.\n\n\"The Saxons, who subdued Britain, as they enjoyed great liberty\nin their own country, obstinately retained that invaluable\npossession in their new settlement; and they imported into this\nisland the same principles of independence, which they had\ninherited from their ancestors. The chieftains, ( for such they\nwere, more than kings or princes,) who commanded them in those\nmilitary expeditions, still possessed a very limited authority;\nand as the Saxons exterminated, rather than subdued the ancient\ninhabitants, they were, indeed, transplanted into a new\nterritory, but preserved unaltered all their civil and military\ninsfitutions. The language was pure Saxon; even the names of\nplaces, which often remain while the tongue entirely  changes,\nwere almost all affixed by the conquerors; the manners and\ncustoms were wholly German; and the same picture of a fierce and\nbold liberty, which is drawn by the masterly pen of Tacitus, will\nsuit those founders of the English government. The king, so far\nfrom being invested with arbitrary power, was only considered as\nthe first among the citizens; his authority depended more on his\npersonal qualities than on his station; he was even so far on a\nlevel with the people, that a stated price was fixed for his\nhead, and a legal fine was levied upon his murderer, which though\nproportionate to his station, and superior to that paid for the\nlife of a subject, was a sensible mark of his subordination to\nthe community.\"   1 Hume, Appendix, l.\n\nStuart says:\n\n\"The Saxons brought along with them into Britain their own\ncustoms, language, and civil institutions. Free in Germany, they\nrenounced not their independence, when they had conquered.\nProud from victory, and with their swords in their hands, would\nthey surrender their liberties to a private man? Would temporary\nladers, limited in their powers, and unprovided in resources,\never think to usurp an authority over warriors, who considered\nthemselves as their equals, were impatient of control, and\nattached with devoted zeal to their privileges? Or, would they\nfind leisure to form resolutions, or opportunities to put them in\npractice, amidst the tumult and confusion of those fierce and\nbloody wars, which their nations first waged with the Britons,\nand then engaged in among themselves? Sufficiently flattered in\nleading the armies of their countrymen, the ambition of\ncommanders could as little suggest such designs, as the liberty\nof the people could submit to them. The conquerors of Britain\nretained their independence; and this island saw itself again in\nthat free state in which the Roman arms had discovered it.\n\n\"The same firmness of character, and generosity of manners,\nwhich, in general, distinguished the Germans, were possessed in\nan eminent degree by the Saxons; and while we endeavor to unfold\ntheir political institutions, we must perpetually turn our\nobservation to that masterly picture in which the Roman historian\nhas described these nations. In the woods of Germany shall we\nfind the principles which directed the state of land, in the\ndifferent kingdoms of Europe; and there shall we find the\nfoundation of those ranks of men, and of those civil\narrangements, which the barbarians everywhere established; and\nwhich the English alone have had the good fortune, or the spirit,\nto preserve.\"   Stuart on the Constitution of england, p. 59 - 61.\n\n\"Kings they (the Germans) respected as the first magistrates of\nthe state; but the authority possessed by them was narrow and\nlimited.\"   Ditto, p. 134.\n\n\"Did he, (the king,) at any time, relax his activity and martial\nardor, did he employ his abilities to the prejudice of his\nnation, or fancy he was superior to the laws; the same power\nwhich raised him to honor, humbled and degraded him. The\ncustoms and councils of his country pointed out to him his\nduty; and if he infringed on the former, or disobeyed the latter,\na fierce people set aside his authority.\n\n\"His long hair was the only ornament he affected, and to be\nforemost to attack an enemy was his chief distinction.\nEngaged in every hazardous expedition, he was a stranger to\nrepose; and, rivalled by half the heroes of his tribe, he could\nobtain little power. Anxious and watchful for the public\ninterest, he felt every moment his dependence, and gave\nproofs of his suhmission.\n\n\"He attended the general assembly of his nation, and was allowed\nthe privilege to harangue it first; but the arts of persuasion,\nthough known and respected by a rude people, were unequally\nopposed to the prejudices and passions of men.\"   Ditto, p. 135 - 6.\n\n\"The authority of a Saxon mnarch was not more considerable. The\nSaxons submitted not to the arbitrary rule of princes. They\nadministered an oath to their sovereigns, which bound them to\naeknowledge the laws, and to defend the rights of the church and\npeople; and if they forgot this obligation, they forfeited their\noffice. In both countries, a price was affixed on kings, a fine\nexpiated their murder, as well as that of the meanest citizen;\nand the smallest violation of ancient usage,or the least step\ntowards tyranny, was always dangerous, and often fatal to them.\"\nDitto, p. 189-40.\n\n\"They were not allowed to impose taxes on the kingdom.\"   Ditto,\np. 146.\n\n\"Like the German monarchs, they deliberated in the general\nassembly of the nation; but their legislative authority was not\nmuch respected; and their assent was considered in no better\nlight than as a form. This, however, was their chief prerogative;\nand they employed it to acquire an ascendant in the state. To art\nand insinuation they turned, as their only resource, and\nflattered a people whom they could not awe; but address, and the\nabilities to persuade, were a weak compensation for the absence\nof real power.\n\n\"They declared war, it is said, and made peace. In both cases,\nhowever, they acted as the instruments of the state, and put in\nexecution the resolutions which its councils had decreed. If,\nindeed, an enemy had invaded the kingdoms, and its glory and its\nsafety were concerned, the great lords took the field at the call\nof their sovereign. But had a sovereign declared war against a\nneighboring state, without requiring their advice, or if he meant\nto revenge by arms an insult offered to him by a subject, a\nhaughty and independent nobility refused their assistance. These\nthey considered as the quarrels of the king, and not of the\nnation; and in all such emergencies he could only be assisted by\nhis retainers and dependents.\"   Ditto, p. 147   8.\n\n\"Nor must we imagine that the Saxon, any more than the German\nmonarchs, succeeded each other in a lineal descent, [2] or that\nthey disposed of the crown at their pleasure. In both countries,\nthe free election of the people filled the throne; and their\nchoice was the only rule by which princes reigned. The\nsuccession, accordingly, of their kings was often broken and\ninterrupted, and their depositions were frequent and groundless.\nThe will of a prince whom they had long respected, and the favor\nthey naturally transferred to his descendant, made them often\nadvance him to the royal dignity; but the crown of his ancestor\nhe cnsidered as the gift of the people, and neither expected nor\nclaimed it as a right.\"   Ditto, p. 151   3.\n\nIn Germany \"It was the business of the great to command in war,\nand in peace they distributed justice.\n\n\"The princes in Germany were earls in England. The great\ncontended in both countries in the number of their retainers, and\nin that splendor and magnificence which are so alluring to a rude\npeople; and though they joined to set bounds to regal power, they\nwere often animated against each other with the fiercest hatred.\nTo a proud and impatient nobility it seemed little and unsuiting\nto give or accept compositions for the injuries they committed or\nreceived; and their vassals adopting their resentment and\npassions, war and bloodshed alone could terminate their quarrels.\nWhat necessarily resulted from their situation in society, was\ncontinued as a privilege; and the great, in both countries, made\nwar, of their private authority, on their enemies. The Saxon\nearls even carried their arms against their sovereigns; and,\nsurrounded with retainers, or secure in fortresses and castles,\nthey despised their resentment, and defied their power.\n\n\"The judges of the people, they presided in both countries in\ncourts of law. [3] The particular districts over which they\nexerted their authority were marked out in Germany by the council\nof the state; and in England their jurisdiction extended over the\nfiefs and other territories they possessed. All causes, both\ncivil and criminal, were tried before them; and they judged,\nexcept in cases of the utmost importance, without appeal. They\nwere even allowed to grant pardon to criminals, and to correct by\ntheir clemency the rigors of justice.  Nor did the sovereign\nexercise any authority in their lands. In these his officers\nformed no courts, and his writ was disregarded.\n\n\"They had officers, as well as the king, who collected their\nrevenues, and added to their greatness; and the inhabitants of\ntheir lands they distinguished by the name of subjects.\n\n\"But to attend the general assembly of their nation was the chief\nprerogative of the German and Saxon princes; and as they\nconsulted the interest of their country, and eliberated\nconcerning matters of state, so in the king's court, of which\nalso they were members, they assisted to pronounce judgment in\nthe complaints and appeals which were lodged in it.\"   Ditto, p.\n158 to 165.\n\nHenry says:\n\n\"Nothing can be more evident than this important truth; that our\nAnglo-Saxon kings were not absolute monarchs; but that their\npowers and prerogatives were limited by the laws and customs of\nthe country. Our Saxon ancestors had been governed by limited\nmonarchs in their native seats on the continent; and there is not\nthe least appearance or probability that they relinquished their\nliberties, and submitted to absolute government in their new\nsettlements in this island. It is not to be imagined that men,\nwhose reigning passion was the love of liberty, would willingly\nresign it; and their new sovereigns, who had been their\nfellow-soldiers, had certainly no power to compel them to such a\nresignation.\"   3 Henry's History of Great Britain, 358.\n\nMackintosh says:\"The Saxon chiefs, who were called. kings,\noriginally acquired power by the same natural causes which have\ngradually, and everywhere, raised a few men above their fellows.\nThey were, doubtless, more experienced, more skillful, more\nbrave, or more beautiful, than those who followed them. * * A\nking was powerful in war by the lustre of his arms, and the\nobvious necessity of obedience. His influence in peace fluctuated\nwith his personal character. In the progress of usage his power\nbecame more fixed and more limited. * * It would be very\nunreasonable to suppose that the northern Germans who had\nconquered England, had so far changed their characteristic habits\nfrom the age of Tacitus, that the victors became slaves, and that\ntheir generals were converted into tyrants.\"   Mackintosh's Hist.\nof England, Ch. 2. 45 Lardner's Cab. Cyc., 73-4.\n\nRapin, in his discourse on the \"Origin and Nature of the English\nConstitution,\" says:\n\n\"There are but two things the Saxons did not think proper to\ntrust their kings with; for being of like passions with other\nmen, they might very possibly abuse them; namely, the power of\nchanging the laws enacted by consent of king and people; and the\npower of raising taxes at pleasure.From these two articles sprung\nnumberless branches concerning the liberty and property of the\nsubject, which the king cannot touch, without breaking the\nconstitution, and they are the distinguishing character of the\nEnglish monarchy. The prerogatives of the crown, and the rights\nand privileges of the people, flowing from the two fore-mentioned\narticles, are the ground of all the laws that from time to time\nhave been made by unanimous consent of king and people. The\nEnglish government consists in the strict union of the king's\nprerogatives with the people's liberties. * * But when kings\narose, as some there were, that aimed at absolute power, by\nchanging the old, and making new laws, at pleasure; by imposing\nillegal taxes on the people; this excellent government being, in\na manner, dissolved by these destructive measures, confusion and\ncivil wars ensued, which some very wrongfully ascribe to the\nfickle and restless temper of the English.\"   Rapin's Preface to\nhis History of England.\n\nHallam says that among the Saxons, \"the royal authority was\nweak.\"   2 Middle Ages, 403.\n\nBut although the king himself had so little authority, that it\ncannot be supposed for a moment that his laws were regarded as\nimperative by the people, it has nevertheless been claimed, in\nmodern times, by some who seem determined to find or make a\nprecedent for the present legislative authority of parliament,\nthat his laws were authoritative, when assented to by the Witena\n- gemote, or assembly of wise men   that is, the bishops and\nbarons. But this assembly evidently had no legislative power ,\nwhatever. The king would occasionally invite the bishops and\nbarons to meet him for consultation on public affairs, simply as\na council, and not as a legislative body. Such as saw fit to\nattend, did so. If they were agreed upon what ought to be done,\nthe king would pass a law accordingly, and the barons and bishops\nwould then return and inform the people orally what laws had been\npassed, and use their influence with them to induce them to\nconform to the law of the king, and the recommendation of the\ncouncil. ' And the people no doubt were much more likely to\naccept a law of the king, if it had been approved by this\ncouncil, than if it had not. But it was still only a law of the\nking, which they obeyed or disregarded according to their own\nnotions of expediency. The numbers who usually attended this\ncouncil were too small to admit of the supposition that they had\nany legislative authority whatever, to impose laws upon the\npeople against their will.\n\nLingard says:\n\n\"It was necessary that the king should obtain the assent of these\n(the members o the Witena-gemotes) to all legislative enactments;\nbecause, without their acquiescence and support, it was\nimpossible to carry them into execution. To many charters (laws)\nwe have the signatures of the Witan. They seldom exceed thirty in\nnumber; they never amount to sixty.\"   1 Lingard; 486.\n\nIt is ridiculous to suppose that the assent of such an assembly\ngave any authority to the laws of the king, or had any influence\nin securing obedience to them, otherwise than by way of\npersuasion. If this body had had any real legislative authority,\nsuch as is accorded to legislative bodies of the present day,\nthey would have made themselves at once the most conspicuous\nportion of the government, and would have left behind them\nabundant evidence of their power, instead of the evidence simply\nof their assent to  a few laws passed by the king.\n\nMore than this. If this body had had any real legislative\nauthority, they would have constituted an aristocracy, having, in\nconjunction with the king, absolute power over the people.\nAssembling voluntarily, merely on the invitation of the king;\ndeputed by nobody but themselves; representing nobody but\nthemselves; responsible to nobody but themselves; their\nlegislative authority, if they had had any, would of necessity\nhave made the government the government of an aristocracy\nmerely, and the people slaves, of course. And this would\nnecessarily have been the picture that history would have\ngiven us of the Anglo-Saxon government, and of Anglo-Saxon\nliberty.\n\nThe fact that the people had no representation in this assembly,\nand the further fact that, through their juries alone, they\nnevertheless maintained that noble freedom, the very tradition of\nwhich (after the substance of the thing itself has ceased to\nexist) has constituted the greatest pride and glory of the nation\nto this day, prove that this assembly exercised no authority\nwhich juries of the people acknowledged, except at their own\ndiscretion. [4]\n\nThere is not a more palpable truth, in the history of the\nAnglo-Saxon government, than that stated in the Introduction to\nGilbert's History of the Common Pleas, [5] viz.. \"that the\nCounty aud Hundred Courts,\" (to which should have been added\nthe other courts in which juries sat, the courts-baron and\ncourt-leet,) \"in those times were the real and only Parliaments\nof the kingdom.\" And why were they the real and only parliaments\nof the kingdom? Solely because, as will be hereafter shown, the\njuries in those courts tried causes on their intrinsic merits,\naccording to their own ideas of justice, irrespective of the laws\nagreed upon by kings, priests, and barons; and whatever\nprinciples they uniformly, or perhaps generally, enforced, and\nnone others, became practically the law of the land as matter of\ncourse. [6]\n\nFinally, on this point. Conclusive proof that the legislation of\nthe king was of little or no authority, is found in the fact that\nthe kings enacted so few laws. If their laws had been received as\nauthoritative, in the manner that legislative enactments are at\nthis day, they would have been making laws continually. Yet the\ncodes of the most celebrated kings are very small, and were\nlittle more than compilations of immemorial customs. The code of\nAlfred would not fill twelve pages of the statute book of\nMassachusetts, and was little or nothing else than a compilation\nof the laws of Moses, and the Saxon customs, evidently collected\nfrom considerations of convenience, rather than enacted on the\nprinciple of authority. The code of Edward the Confessor would\nnot fill twenty pages of the statute book of Massachusetts, and,\nsays Blackstone, \"seems to have been no more than a new edition,\nor fresh promulgation of Alfred's code, or dome-book, with such\nadditions and improvements as the experience of a century and a\nhalf suggested.\"   1 Blackstone, 66. [7]\n\nThe Code of Wiliiam the Conqueror [8] would fill less than seven\npages of the statute book of Massachusetts; and most of the laws\ncontained in it are taken from the laws of the preceding kings,\nand especially of Edward the Confessor (whose laws William\nswore to observe); but few of his own being added.\n\nThe codes of the other Saxon and Norman kings were, as a general\nrule, less voluminous even than these that have been named; and\nprobably did not exceed them in originality. [9] The Norman\nprinces, from William the Conqueror to John, I think without\nexception, bound themselves, and, in order to mqintain their\nthrones, were obliged to bind themselves, to observe the ancient\nlaws and customs, in other words; the \"lex terrae,\" or \"common\nlaw\" of the kingdom. Even Magna Carta contains hardly anything\nother than this same \"common law,\" with some new securities for\nits observance.\n\nHow is this abstinence from legislation, on the part of the\nancient kings, to be accounted for, except on the supposition\nthat the people would accept, and juries enforce, few or no new\nlaws enacted by their kings? Plainly it can be accounted. for in\nno ether way. In fact, all history informs us that anciently the\nattempts of the kings to introduce or establish new laws, met\nwith determined resistance from the people, and generally\nresulted in failure \"Nolumus Leges Angliae mutari\" (we will that\nthe laws of England be not changed,) was a determined principle\nwith the Anglo-Saxons, from which they seldom departed, up to\nthe time of Magna Carta, and indeed until long after. [10]\n\nSECTION II\n\nThe Ancient Common Law Juries were mere Courts of\nConscience.\n\nBut it is in the administration of justice, or of law, that the\nfreedom or subjection of a people is tested. If this\nadministration be in accordance with the arbitrary will of the\nlegislator   that is, if his will, as it appears in his statutes,\nbe the highest rule of decision known to the judicial tribunals,\nthe government is a despotism, and the people are slaves. If, on\nthe other hand, the rule of decision be these principles of\nnatural equity and justice, which constitute, or at least are\nembodied in, the general conscience of mankind, the people are\nfree in just so far as that conscience is enlightened.\n\nThat the authority of the king was of little weight with the\njudicial tribunals, must necessarily be inferred from the fact\nalready stated, that his authority over the people was but weak.\nIf the authority of his laws had been paramount in the judicial\ntribunals, it would have been paramount with the people, of\ncourse; because they would have had no alternative but\nsubmission. The fact, then, that his laws were not authoritative\nwith the people, is proof that they were not authoritative with\nthe tribunals   in other words, that they were not, as matter of\ncourse, enforced by the tribunals.\n\nBut we have additional evidence that, up to the time of Magna\nCarta, the laws of the king were not binding upon the judicial\ntribunals; and if they were not binding before that time, they\ncertainly were not afterwards, as has already been shown from\nMagna Carta itself. It is manifest from all the accounts we have\nof the courts in which juries sat, prior to Magna Carta, such as\nthe court-baron, the hundred court, the court-leet, and the\ncounty court, that they were mere courts of conscience, and that\nthe juries were the judges, deciding causes according to their\nown notions of equity, and not according to any laws of the king,\nunless they thought them just.\n\nThese courts, it must be considered, were very numerous, and held\nvery frequent sessions. There were probably seven, eight, or nine\nhundred courts a month, in the kingdom; the object being, as\nBlackstone says, \"To bring justice home to every man's door.\" (3\nBlackstone, 80.) The number of the county courts, of course,\ncorresponded to the number of counties, (36.) The court-leet was\nthe criminal court for a district less than a county. The hundred\ncourt was the court for one of those districts anciently called a\nhundred, because, at the time of their first organization for\njudicial purposes, they comprised, (as is supposed) but a hundred\nfamilies. [11] The court-baron was the court for a single manor,\nand there was a court for every manor in the kingdom. All these\ncourts were holden as often as once in three or five weeks; the\ncounty court once a month. The king's judges were present at none\nof these courts; the only officers in attendance being sheriffs\nbailiff's, and stewards, merely ministerial, and not judicial,\nofficers; doubtless incompetent, and, if not incompetent,\nuntrustworthy, for giving the juries any reliable information in\nmatters of law, beyond what was already known to the jurors\nthemselves.\n\nAnd yet these were the courts, in which was done all the judicial\nbusiness, both civil and criminal, of the nation, except appeals,\nand some of the more important and difficult cases. [12] It is\nplain that the juries, in these courts, must, of necessity, have\nbeen  the sole judges of all matters of law whatsoever; because\nthere was no one present, but sheriffs, bailiffs, and stewards,\nto give them any instructions; and surely it will not be pretended\nthat the jurors were bound to take their law from such sources\nas these.\n\nIn the second place, it is manifest that the principles of law,\nby which the juries determined causes, were, as a general rule,\nnothing else than their own ideas of natural equity, and not any\nlaws of the king; because but few laws were enacted, and many of\nthose were not written, but only agreed upon in council. [13] Of\nthose that werewritten, few copies only were made, (printing\nbeing then unknown,) and not enough to supply a11, or any\nconsiderable number, of these numerous courts. Beside and\nbeyond all this, few or none of the jurors could have read the laws, if\nthey had been written; because few or none of the common people\ncould, at thattime, read. Not only were the common people unable\nto read their own language, but, at the time of Magna Carta, the\nlaws were written in Latin, a language that could be read by few\npersons except the priests, who were also the lawyers of the\nnation. Mackintosh says, \"the first act of the House of Commons\ncomposed and recorded in the English tongue,\" was in 1415, two\ncenturies after Magna Carta. [14]. Up to this time, and for some\nseventy years later, the laws were generally written either in Latin\nor French; both languages incapable of being read by the common\n people, as well Normans as Saxons; and one of them, the Latin,\n not only incapable of being read by them, but of beingeven\nunderstood when it was heard by them.\n\nTo suppose that the people were bound to obey, and juries to\nenforce, laws, many of which were unwritten, none of which they\ncould read, and the larger part of which (those written in Latin)\nthey could not translate, or understand when they heard them\nread, is equivalent to supposing the nation sunk in the most\ndegrading slavery, instead of enjoying a liberty of their own\nchoosing.\n\nTheir knowledge of the laws passed by the king was, of course,\nderived only from oral information; and the good laws,\"as some of\nthem were called, in contradistinction to others   those which\nthe people at large esteemed to be good laws   were doubtless\nenforced by the juries, and the others, as a general thing,\ndisregarded. [15]\n\nThat such was the nature of judicial proceedings, and of the\npower of juries, up to the time of Magna Carta, is further shown\nby the following authorities.\n\n\"The sheriff's and bailiffs caused the free tenants of their\nbailiwics to meet at their counties and hundreds; at which\njustice was so done, that every one so judged his neighbor by\nsuch judgment as a man could not elsewhere receive in the like\ncases, until such times as the customs of the realm were put in\nwriting, and certainly published.\n\n\"And although a freeman commonly was not to serve (as a juror or\njudge) without his assent, nevertheless it was assented unto that\nfree tenants should meet together in the counties and hundreds,\nand lords courts, if they were not specially exempted to do such\nsuits, and there judged their neighbors.\"   Mirror of Justices,\np. 7, 8.\n\nGilbert, in his treatise on the Constitution of England, says:\n\n\"In the county courts, if the debt was above forty shillings,\nthere issued a justicies (a commission) to the sheriff, to enable\nhim to hold such a plea, where the suitors (jurors) are judges of\nthe law and fact.\"   Gilbert's Cases in Law and Equity, &c;.,\n&c;., 456.\n\nAll the ancient writs, given in Glanville, for summoning jurors,\nindicate that the jurors judged of everything, on their\nconsciences only. The writs are in this form:\n\n\"Summon twelve free and legal men (or sometimes twelve\nknights)\nto be in court, prepared upon their oaths to declare whether A or\nB have the greater right to the land {or other thing) in\nquestion.\" See Writs in Beames' Glanville, p. 54 to 70, and 233\n306 to 832.\n\nCrabbe, speaking of the time of Henry I., (1100 to 1135,)\nrecognizes the fact that the jurors were the judges. He says:\n\n\"By one law, every one was to be tried by his peers, who were of\nthe same neighborhood as himself. * *By another law, the judges,\nfor so the jury were called, were to be chosen by the party\nimpleaded, after the manner of the Danish nem-bas; by which,\nprobably, is to be understood that the defendant had the liberty\nof taking exceptions to, or challenging the jury, as it was\nafterwards called.\"   Crabbe's History of the English Law, p. 55.\n\nReeve says:\n\n\"The great court for civil business was the county court; held\nonce every four weeks. Here the sheriff presided; but the suitors\nof the court, as they were called, that is, the freemen or\nlandholders of the county, were the judges; and the sheriff was\nto execute the judgment.\n\n\"The hundred court was held before some bailiff; the leet before\nthe lord of the manor's steward.[16]\n\n\"Out of the county court was derived an inferior court of civil\njurisdiction, called the court-baron. This was held from three\nweeks to three weeks, and was in every respect like the county\ncourt;\" (that is, the jurors were judges in it;) \"only the lord\nto whom this franchise was granted, or his steward presided\ninstead of the sheriff;\"   1 Reeve's History of the English Law,\np. T.,\n\nChief Baron Gilbert says:\n\n\"Besides the tenants of the king, which held per baroniam, (by\nthe right of a baron,) and did suit and service (served as\njudges) at his own court; and the burghers and tenants in ancient\ndemesne, that did suit and service (served as jurors or judges)\nin their own court in person), and in the king's by proxy, there\nwas also a set of freeholders, that did suit aud service (served\nas jurors) at the county court. These were such as anciently held\nof the lord of the county, and by the escheats of earldoms had\nfallen to the king; or such as were granted out by service to\nhold of the king, but with particular reservation to do suit and\nservice (serve as jurors) before the kng's bailiff; because it\nwas necessary the sheriff, or bailiff of the king, should have\nsuitors (jurors) at the county court, that the business might be\ndespatched. These suitors are the pares (peers) of the county\ncourt, and indeed the judges of it; as the pares (peers) were the\njudges in every court-baron; and therefore the king's bailiff\nhaving a court before him, there must be pares or judges, for the\nsheriff himself is not a judge; and though the style of the court\nis Curia prima Comitatus E. C. Milit.' vicecom' Comitat' praed'\nTent' apud B., &c;. (First Court of the county, E. C. knight,\nsheriff of the aforesaid county, held at B., &c;.); by which it\nappears that the court was the s1ieriff's; yet, by the old feudal\nconstititions, the lord was not judge, but the pares (peers)\nonly; so that, even in a justicies, which was a commission to the\nsheriff to hold plea of more than was allowed hy the natural\njurisdiction of a county court, the pares (peers, jurors) only\nwere judges, and not the sheriff; because it was to hold plea in\nthe same manner as they used to do in that (the lord's) court.\"\nGilbert on the Court of Exchequer, ch. 5.  61- 2.\n\n\"It is a distinguishing feature of the feudal system, to make\ncivil jurisdiction necessarily, and criminal jurisdiction\nordinarily, coextensive with tenure; and accordingly there is\ninseparably incident to every manor a court-baron (curia\nbaronum), being a court in which the freeholders of the manor are\nthe sole judges, but in which the lord, by himself or more\ncommonly by his steward, presides.\"   Political Dictionary, word\nManor.\n\nThe same work, speaking of the county court, says: \"The judges\nwere the freeholders who did suit to the court.\" See word Courts.\n\n\"In the case of freeholders attending as suitors, the county\ncourt or court-baron., (as in the case of the ancient tenants per\nbaroniam attending Parliament,) the suitors are the judges of the\ncourt, both for law and for fact, and the sheriff or the under\nsheriff in the county court, and the lord or his steward in the\ncourt-baron, are only presiding officers, with no judicial\nauthority.\"   Political Dictionary, word Suit.\n\n\"Court, (curtis, curia aula); the space enclosed by the walls of\na feudal residence, in which the followers of a lord used to\nassemble in the middle ages, to administer justice, and decide\nrespecting affairs of common interest, &c;. It was next used for\nthose who stood in immediate connexion with the lord and master,\nthe pares curiae, (peers of the court,) the limited portion of\nthe general assembly, to which was entrusted the pronouncing of\njudgment,\" &c;.  Encyclopedia Americana, word Court.\n\n\"In court-barons or county courts the steward was not judge, but\nthe pares (peers, jurors); nor was the speaker in the House of\nLords judge, but the barons only.\"   Gilbert on the Court of\nRxchequer, ch. 3, p. 42.\n\nCrabbe, speaking of the Saxon times, says:\n\n\"The sheriff presided at the hundred court, * * and sometimes sat\nin the place of the alderman (earl) in the county court.\"\nCrabbe, 23.\n\nThe sheriff afterwards became the sole presiding officer of the\ncounty court.\n\nSir Thomas Smith, Secretary of State to queen Elizabeth, writing\nmore than three hundred years after Magna Carta, in describing\nthe difference between the Civil Law and the English Law, says:\n\n\"Judex is of us called Judge, but our fashion is so divers, that\nthey which give the deadly stroke, and either condemn or acquit\nthe man for guilty or not guilty, are not called judges, but the\ntwele men. And the same order as well in civil matters and\npecuniary, as in matters criminal.\"   Smith's Commonwealth of\nEngland, ch. 9, p. 53, Edition of 1621.\n\nCourt-Leet. \"That the leet is the most ancient court in the land\nfor criminal matters, (the court-baron being of no less antiquity\nin civil,) has been pronounced by the highest legal authority. *\n* Lord Mansfield states that this court was coeval with the\nestablishment of the Saxons here, and its activity marked very\nvisibly both among the Saxons and Danes. * * The leet is a court\nof record for the cognizance of criminal matters, or pleas of the\ncrown; and necessarily belongs to the king; though a subject,\nusually the lord of the manor, may be, and is, entitled to the\nprofits, consisting of the essoign pence, fines, and amerciaments\n\n\"It is held before the steward, or was, in ancient times, before\nthe bailiff, of the lord.\"   Tomline's Law Dict., word\nCourt-Leet.\n\nOf course the jury were the judges in this court, where only a\n\"steward\" or \"bailiff\" of a manor presided.\n\n\"No cause of consequence was determined without the king's writ;\nfor even in the county courts, of the debts, which were above\nforty shillings, there issued a Justicies (commission) to the\nsheriff, to enable him to hold such plea, where the suitors are\njudges of the law and fact.\"   Gilbert's History of the Common\nPleas, Introduction, p. 19.\n\n\"This position\" (that \" the matter of law was decided by the\nKing's Justices, but the matter of fact by the pares \") \"is wholly\nincompatible with the common law, for the Jurata ( jury)\nwere the sole judges both of the law and the fact.\"   Gilbert's\nHistory of the Common Pleas, p. 70, note.\n\n\"We come now to the challenge: and of old the suitors in court,\nwho were judge, could not he challenged; nor by the feudal law\ncould the pares be even challenged. Pares qui ordinariam\njurisdictionem habent recusari non possunt; (the peers who have\nordinary jurisdiction cannot be rejected;) \"but those suitors who\nare judges of the court, could not be challenged; and the reason\nis, that there are several qualifications required by the writ,\nviz., that they be liberos et legales homines de vincineto (free\nand legal men of the neighborhood) of the place laid in the\ndeclaration,\" &c;., &c;.   Ditto, p.93.\n\n\"Ad questionem juris non respondent Juratores.\" (To the question\nof law the jurors do not answer.) \"The Annotist says, that this\nis indeed a maxim in the Civil-Law Jurisprudence, but it does not\nbind an English jury, for by the common law of theland the jury\nare the judges as well of the matter of law, as of the fact, with\nthis difference only, that the [a Saxon word] or judge on the\nbench is to give them no assistance in determining the matter of\nfact, but if they have any doubt among themselves relating to\nmatter of law, they may then request him to explain it to them,\nwhich when he hath done, and they are thus become well\ninformed, they, and they only, become competent judges of the\nmatter of law. And this is the province of the judge on the bench,\nnamely, to show, or teach the law, but not to take upon him the\ntrial of the delinquent, either in matter of fact or in matter of law.\"\n(Here various Saxon laws are quoted.) \"In neither of these\nfundamental laws is there the least word, hint, or idea, that the\nearl or alderman (that is to say, the Prepositus (presiding\nofficer) of the court, which is tantamount to the judge on the\nbench) is to take upon him to judge the delinquent in any sense\nwhatever, the sole purport of his office is to teach the secular\nor worldly law.\"   Ditto, p. 57, note.\n\n\"The administration of justice was carefully provided for; it was\nnot the caprice of their lord, but the sentence of their peers,\nthat they obeyed. Each was the judge of his equals, and each by\nhis equals was judged.\"   Introd. to Gilbert on Tenures, p. 12.\n\nHallam says:\n\n\"A respectable class of free socagers, having, in general, full\nrights of alienating their lands, and holding them probably at\na small certain rent from the lord of the manor, frequently\noccur in Domes-day Book. * * They undoubtedly were suitors\nto the court-baron of the lord, to whose soc, or right of\njustice, they belonged. They where consequently judges in civil\ncauses, determined before the manorial tribunal.\"   2 Middle\nAges, 481.\n\nStephens adopts as correct the following quotations from Blackstone:\n\"The Court-Baron is a court incident to every manor in the kingdom,\nto be holden by the steward within the said manor.\" * *\n\nIt \"is a court of common law, and it is the court before the\nfreeholders who owe suit and service to the manor,\" (are bound to\nserve as jurors in the courts of the manor,) \"the steward being\nrather the registrar than the judge. * * The freeholders' court\nwas composed of the lord's tenants, who were the pares(equals) of\neach other, and were bound by their feudal tenure to assist their\nlord in the dispensation of domestic justice. This was formerly\nheld every three weeks; and its most important business was to\netermine, by writ of right, all controversies relating to the right\nof lands within the manor.\"   3 Stephens' Commentaries, 392  3.\n3 Blackstone, 32-33.\n\n\"A Hundred Court is only a larger court-baron, being held for all\nthe inhabitants of a particular hundred, instead of a manor. The\nfree suitors ( jurors) are here also the judges, and the steward\nthe register.\"   3 Stephens, 394. 3 Blackstone, 33.\n\n\"The County Court is a court incident to the jurisdiction of the\nsheriff. * * The freeholders of the county are the real judges in\nthis court, and the sheriff is the ministerial officer.\"   3\nStephens, 395   6. 3 Blackstone, 35-6.\n\nBlackstone describes these courts, as courts \"wherein injuries\nwere redressed in an easy and expeditious manner, by the suffrage\nof neighbors and friends.\"   3 Blackstone, 30.\n\n\"When we read of a certain number of freemen chosen by the\nparties to decide in a dispute   all bound by oath to vote in\nforo conscientia   and that their decision, not the will of the\njudge presiding, ended the suit, we at once perceive that a great\nimprovement has been made in the old form of compurgation   an\nimprovement which impartial observation can have no hesitation\nto pronounce as identical in its main features with the trial by\njury.\"   Dunham's Middle Ages, Sec. 2, B. 2, Ch. 1. 57 Lardner's\nCab. Cyc., 60.\n\n\"The bishop and the earl or, in his absence, the gerefa,\n(sheriff,) and sometimes both the earl and the gerefa, presided\nat the schyre-mote (county court); the gerefa (sheriff) usually\nalone presided at the mote (meeting or court) of the hundred. In\nthe cities and towns which were not within any peculiar\njurisdiction, there was held, at regular stated intervals, a\nburgh mote, (borough court,) for the administration of justice,\nat which a gerefa, or a magistrate appointed by the king,\npresided.\"   Spence's Origin of the Laws and Political\nInstitutions of Modern Europe, p. 444.\n\n\"The right of the plaintiff and defendant, and of the prosecutor\nand criminal, to challenge the judices, (judges.) or assessors,\n[17] appointed to try the cause in civil matters, and to decide\nupon the guilt or innocence of the accused in criminal matters,\nis recognized in the treatise called the Laws of Henry the First;\nbut I cannot discover, from the Anglo-Saxon laws or histories,\nthat before the Conquest the parties had any general right of\nchallege; indeed, had such right existed, the injunctions to all\npersons standing in the situation of judges (jurors) to do right\naccording to their conscience, would scarcely have been so\nfrequently and anxiously repeated.\"   Spence, 456.\n\nHale says:\n\n\"The administration of the common justice of the kingdom seems\nto be wholly dispensed in the county courts, hundred courts, and\ncourts-baron; except some of the greater crimes reformed by the\nlaws of King Henry I., and that part thereof which was sometimes\ntaken up by the Justitiarius Angliae.\n\nThis doubtless bred great inconvenience, uncertainty, and variety\nin the laws, viz.:\n\n\"First, by the ignorance of the judges, which were the\nfreeholders of the county.* *\n\n\"Thirdly, a third inconvenience was, that all the business of any\nmoment was carried by parties and factions. For the freeholders\nbeing generally the judges, and conversing one among another, and\nbeing as it were the chief judges, not only of the fact, but of\nthe law; every man that had a suit there, sped according as he\ncould make parties.\"   1 Hale's History of the Common Law, p.\n246.\n\n\"In all these tribunals,\" (county court, hundred court, &c;..)\n\"the judges were the free tenants, owing suit to the court, and\nafterwards called its peers.\"   1 Lingard's History of England,\n488.\n\nHenry calls the twelve jurors \"assessors,\" and says:\n\"These assessors, who were in reality judges, took a solemn oath,\nthat they would faithfully discharge the duties of their office,\nand not suffer an innocent man to be condemned, nor any guilty\nperson to be acquitted.\"   3 Henry's History of Great Britain,\n346.\n\nTyrre11 says:\n\n\"Alfred cantoned his kingdom, first into Trihings and Lathes, as\nthey are still called in Kent and other places, consisting of\nthree or four Hundreds; in which, the freeholders being judges,\nsuch causes were brought as could not be determined in the\nHundred court.\"   Tyrrell's Introduction to the History of\nEngland, p. 80.\n\nOf the Hundred Court he says:\n\n\"In this court anciently, one of the principal inhabitants,\ncalled the alderman, together with the barons of the Hundred [18]\n id est the freeholders   was judge.\"   Ditto, p. 80.\n\nAlso he says:\n\n\"By a law of Edward the Elder, 'Every sheriff shall convene the\npeople once a month, and do equal right to all, putting an end to\ncontroversies at times appointed.'\"   Ditto, p. 86.\n\nA statute, emphatically termed the ' Grand Assize,' enabled the\ndefendant, if he thought proper, to abide by the testimony of the\ntwelve good and lawful knights, chosen by four others of the\nvicinage, and whose oaths gave a final decision to the contested\nclaim,.\"  1 Palgrave's Rise and Progress of the English\nCommonwealth, 261.\n\n\"From the moment when the crown became accustomed to the\n'Inquest,' a restraint was imposed upon every branch of the\nprerogative. The king could never be informed of his rights, but\nthrough the medium of the people. Every 'extent' by which he\nclaimed the profits and advantages resulting from the casualties\nof tenure, every process by which he repressed the usurpations of\nthe baronage, depended upon the 'good men and true' who were\nimpaneled to 'pass' between the subject and the sovereign; and\nthe thunder of the Exchequer at Westminster might be silenced by\nthe honesty, the firmness, or the obstinacy, of one sturdy knight\nor yeoman in the distant shire.\n\nTaxation was controlled in the same manner by the voice of those\nwho were most liable to oppression. * * A jury was impaneled to\nadjudge the proportion due to the sovereign; and this course was\nnot essentially varied, even after the right of granting aids to\nthe crown was fully acknowledged to be vested in the parliament\nof the realm. The people taxed themselves; and the collection of\nthe grants was checked and controlled, and, perhaps, in many\ninstances evaded, by these virtual representatives of the\ncommunity.\n\nThe principle of the jury was, therefore, not confined to its\nmere application as a mode of trying contested facts, whether in\ncivil or criminal cases; and, both in its form and in its\nconsequences, it had a very material influence upon the general\nconstitution of the realm. * *The main-spring of the machinery of\nremedial justice existed in the franchise of the lower and lowest\norders of the political hierarchy. Without the suffrage of the\nyeoman, the burgess, and the churl, the sovereign could not\nexercise the most important and most essential function of\nroyalty; from them he received the power of life and death; he\ncould not wield the sword of justice until the humblest of his\nsubjects placed the weapon in his hand.\"   1 Palgrave's Rise and\nProgress of the English Constitution, 274   7.\n\nCoke says,\n\n\"The court of the county is no court of record, [19]\nand the suitors are the judges thereof.\"   4 Inst.) 266.\n\nAlso, \"The court of the Hundred is no court of record, and the\nsuitors be thereof judges.\"   4 Inst., 267.\n\n\nAlso, \"The court-baron is a court incident to every manor, and is\nnot of record, and the suitors be thereof judges.\"   4 Inst.,\n268.\n\nAlso, \"The court of ancient demesne is in the nature of a\ncourt-baron, wherein the suitors are judges, and is no court of\nrecord.\"   4 Inst., 269.\n\nMillar says,\n\n\"Some authors have thought that jurymen were originally\ncompurgators, called by a defendant to swear that they\nbelieved him innocent of the facts with which he was charged. . .\nBut . . . compurgators  were merely witnesses; jurymen were, in\nreality, judges. The former were called to confirm the oath of\nthe party by swearing, according to their belief, that he had\ntold the truth, (in his oath of purgation;) the latter were\nappointed to try, by witnesses, and by all other means of proof,\nwhether he  was innocent or guilty. Juries were accustomed to\nascertain the truth of facts, by the defendant's oath of\npurgation, together with that of his compurgators. . . Both of\nthem (jurymen and compurgators) were obliged to swear that they\nwould tell truth.\n\nAccording to the simple idea of our forefathers, guilt or innocence\nwas regarded as a mere matter  of fact; and it was thought that no\nman, who knew the real circumstances of a case, could be at a\nloss to determine whether the culprit ought to be condemned or\n acquitted.\"   1 Millar's Hist. View of Eng. Gov., ch. 12, p. 332 - 4.\n\nAlso, \"The same form  of procedure, which took place in the\nadministration of justice among the vassals of a barony, was\ngradually extended to the courts eld in the trading towns.\"\nSame, p. 335.\n\nAlso, \"The same regulation, concerning the distribution of\njustice by the intervention of juries, . . .were introduced into\nthe baron courts of the king, as into those of the nobility, or\nsuch of his subjects as retained their allodial property.\"\nSame, p. 337.\n\nAlso, \"This tribunal\" (the aula regis, or king's court, afterwards\ndivided into the courts of King's Bench, Common Pleas,\nand Exchequer) \"was properly the ordinary baron-court of the\nking; and, being in the same circumstances with the baron courts\nof the nobility, it was under the same necessity of trying causes\nby the intervention of a jury.\"   Same, vol. 2, p. 292.\n\nSpeaking of the times of Edward the First, (1272 to 1307,) Millar\nsays:\n\n\"What is called the petty jury was therefore introduced into\nthese tribunals, (the King's Bench, the Common Pleas, and the\nExhequer,) as well as into their anxiliary courts employed to\ndistribute justice in the circuits; and was thus rendered\nessentially necessary in determining causes of every sort,\nwhether civil, criminal, or fiscal.\"   Same, vol. 2, p. 293-4.\n\nAlso, \"That this form of trial (by jury) obtained universally in\nall the feudal governments, as well as in that of Eng-1and, there\ncan be no reason to doubt. In France, in Germany, and in other\nEuropean countries, where we have any accounts of the\nconstitution and procedure of the feudal courts, it appears that\nlawsuits of every sort concerning the freemen or vassals of a\nbarony, were determined by the pares curiae (peers of the court;)\nand that the judge took little more upon him than to regulate the\nmethod of proceeding, or to declare the verdict of the jury.\"\nSame, vol. 1, ch. 12, p. 329.\n\nAlso, \"Among the Gothic nations of modern Europe, the custom of\ndeciding lawsuits by a jury seems to have prevailed universally;\nfirst in the allodial courts of the county, or of the hundred,\nand afterwards in the baron-courts of every feudal superior.\"\nSame, vol. 2, p. 296.\n\nPalgrave says that in Germany \"The Graff (gerefa, sheriff) placed\nhimself in the seat of judgment, and gave the charge to the\nassembled free Echevins, warning them to pronounce judgment\naccording to right and justice.\"   2 Palgrave, 147.\n\nAlso, that, in Germany, \"The Echevins were composed of the\nvillanage, somewhat obscured in their functions by the learning\nof the grave civilian who was associated to them, and somewhat\nlimited by the encroachments of modern feudality; but they were\nstill substantially the judges of the court.\"   Same, 148.\n\nPalgrave also says, \"Scotland, in like manner, had the laws of\nBurlaw, or Birlaw, which were made and determined by the\nneighbors, elected by common consent, in the Burlaw or Birlaw\ncourts, wherein knowledge was taken of complaints between\nneighbor and neighbor, which men, so chosen, were judges and\narbitrators, and called Birlaw men.\"   1 Palgrave's Rise, &c;.,\np. 80.\n\nBut, in order to understand the common law trial by jury, as it\nexisted prior to Magna Carta, and as it, was guaranteed. by that\ninstrument, it is perhaps indispensable to understand more fully\nthe nature of the courts in which juries sat, and the extent of\nthe powers exercised by juries in those courts. I therefore give\nin a note extended extracts, on these points, from Stuart on the\nConstitution of England, and from Blackstone's Commentaries.\n[20]\n\nThat all these courts were mere courts of conscience, in which\nthe juries were sole judges, administering justice according to\ntheir own ideas of it, is not only shown by the extracts already\ngiven, but is explicitly acknowledged in the following one, in\nwhich the modern \"courts of conscience\" are compared with the\nancient hundred and county courts, and the preference given to\nthe latter, on the ground that the duties of the jurors in the\none case, and of the commissioners in the other,  are the same,\nand that the consciences of a jury are  a safer  and purer\ntribunal than the consciences of individuals specially appointed,\nand holding permanent offices.\n\n\"But there is one species of courts constituted by act of\nParliament, in the city of London, and other trading and populous\ndistricts, which, in their proceedings, so vary from the course\nof the common law, that they deserve a more particular\nconsideration. I mean the court of requests, or courts of\nconscience, for the recovery of small debts. The first of these\nwas established in London so early as the reign of Henry VIII.,\nby an act of their common council; which, however, was certainly\ninsufficient for that purpose, and illegal, till confirmed by\nstatute 3 Jac. I., ch. 15, which has since been explained and\namended by statute 14 Geo. II., ch. 10. The constitution is this:\ntwo aldermen and four commoners sit twice a week to hear all\ncauses of debt not exceeding the value of forty shillings; which\nthey examine in a summary way, by the oath of the parties or\nother witnesses, and make such order therein as is consonant to\nequity and good conscience.i * *  * Divers trading towns and\nother districts have obtained acts of Parliament, for\nestablishing in them courts of conscience upon nearly the same\nplan as that in the city of London.\n\n\"The anxious desire that has been shown to obtain these several\nacts, proves clearly that the nation, ingeneral, is truly\nsensible of the great inconvenience arising from the disuse of\nthe ancient county and hundred courts, wherein causes of this\nsmall value were always formerly decided with very little trouble\nand expense to the parties. But it is to be feared that the\ngeneral remedy, which of late hath been principally applied to\nthis inconvenience, (the erecting these new jurisdictions,) may\nitself be attended in time with very ill consequences; as the\nmethod of proceeding therein is entirely in derogation of the\ncommon law; and their large discretionary powers create a petty\ntyranny in a set of standing commissioners; and as the disuse of\nthe trial by jury may tend to estrange the minds of the people\nfrom that valuable prerogative of Englishmen, which has already\nbeen more than sufficiently excluded in many instances. How\nmuch rather is it to be wished that the proceedings in the county\nand hundred courts could be again revived, without burdening\nthe freeholders with too frequent and tedious attendances; and\nat the same time removing the delays that have insensibly crept\ninto their proceedings, and the power that either party has of\ntransferring at pleasure their suits to the courts at Westminster!\nAnd we may, with satisfaction, observe, that this experiment has\nbeen actually tried, and has succeeded in the populous county of\nMiddlesex, which might serve as an example for others. For by\nstatute 23 Geo. II., ch. 33, it is enacted:\n\n1. That a special county court shall be held at least once in a\nmonth, in every hundred of the county of Middlesex, by the county\nclerk.\n\n2. That twelve freeholders of that hundred, qualified to serve on\njuries, and struck by the sheriff, shall be summoned to appear at\nsuch court by rotation; so as none shall be summoned oftener than\nonce a year.\n\n3. That in all causes not exceeding the value of forty shillings,\nthe county clerk and twelve suitors (jurors) shll proceed in a\nsummary way, examining the parties and witnesses on oath,\nwithout the formal process anciently used; and shall make\nsuch order therein as they shall judge agreeable to conscience.\"\n3 Blackstone, 81   83.\n\nWhat are these but courts of conscience? And yet Blackstone tells\nus they are a revival of the ancient hundred and county courts.\nAnd what does this fact prove, but that the ancient common law\ncourts, in which juries sat, were mere courts of conscience?\nIt is perfectly evident that in all these courts the jurors were\nthe judges, and determined all questions of law for themselves;\nbecause the only alternative to that supposition is, that the\njurors took their law from sheriffs, bailiffs, and stewards, of\nwhich there is not the least evidence in history, nor the least\nprobability in reason. It is evident, also, that they judged\nindependently of the laws of the king, for the reasons before\ngiven, viz., that the authority of the king was held in very,\nlittle esteem; and, secondly, that the laws of the king (not\nbeing printed, and the people being unable to read them if they\nhad been printed) must have been in a great measure unknown to\nthem, and could have been received by them only on the authority\nof the sheriff, bailiff; or steward. If laws were to be received\nby them on the authority of these officers, the latter would have\nimposed such laws upon the people as they pleased.\n\nThese courts, that have now been described, were continued in\nfull power long after Magna Carta, no alteration being made in\nthem by that instrument, nor in the mode of administering justice\nin them.\n\nThere is no evidence whatever, so far as I am aware, that the\njuries had any less power in the courts held by the king's\njustices, than in those held by sheriffs, bailiff, and stewards;\nand there is no probability whatever that they had. All the\ndifference between the former courts and the latter undoubtedly\nwas, that, in the former, the juries had the benefit of the\nadvice and assistance of the justices, which would, of course, be\nconsidered valuable in difficult cases, on account of the\njustices being regarded as more learned, not only in the laws of\nthe king, but also in the common law, or \"law of the land.\"\n\nThe conclusion, therefore, I think, inevitably must be, that\nneither the laws of the king, nor the instructions of his\njustices, had any authority over jurors beyond what the latter\nsaw fit to accord to them. And this view is confirmed by this\nremark of Hallam, the truth of which all will acknowledge:\n\n\"The rules of legal decision, among a rude people, are always\nvery simple; not serving much to guide, far less to control the\nfeelings of natural equity.\"   2 Middle Ages, ch. 8, part 2, p. 465.\n\nIt is evident that it was in this way, by the free and concurrent\njudgments of juries, approving and enforcing certain laws and\nrules of conduct, corresponding to their notions of right and\njustice, that the laws and customs, which, for the most part,\nmade up the common law, and were called, at that day, \"the\ngood laws, and good customs,\" and \"the law of the land,\" were\nestablished. How otherwise could they ever have become\nestablished, as Blackstone says they were, \"by long and\nimmemorial usage, and by their universal reception throughout\nthe kingdom,\"- 1 Blackstone,63-67., when, as the Mirror says,\n\"justice was so done, that every one so judged his neighbor, by\nsuch judgment as a man could not elsewhere receive in the like\ncases, until such times as the customs of the realm, were put in\nwriting and certainly published?\"\n\n\nThe fact that, in that dark age, so many of the principles of\nnatural equity, as those then embraced in the Common Law,\nshould have been so uniformly recognized and enforced by juries,\nas to have become established by general consent as \"the law\nof the land;\" and the further fact that this \"law of the land\" was\nheld so sacred that even the king could not lawfully infringe or\nalter it, but was required to swear to maintain it, are beautiful\nand impressive illustrations of the troth that men's minds, even\nin the comparative infancy of other knowledge, have clear and\ncoincident ideas of the elementary principles, and the paramount\nobligation, of justice. The same facts also prove that the common\nmind, and the general, or, perhaps, rather, the universal\nconscience, as developed in the untrammeled judgments of juries,\nmay be safely relied upon for the preservation of individual rights\nin civil society; and that there is no necessity or excuse for that\ndeluge of  arbitrary legislation, with which the present age is\noverwhelmed,  under the pretext that unless laws be made, the\nlaw will not be  known; a pretext, by the way, almost universally\nused for overturning, instead of establishing, the principles of\njustice.\n\nSECTION III. The Oaths of Jurors.\n\nThe oaths that have been administered to jurors, in England, and\nwhich are their legal guide to their duty, all (so far as I have\nascertained them) corroborate the idea that the jurors are to try\nall cases on their intrinsic merits, independently of any laws\nthat they deem unjust or oppressive. It is probable that an oath\nwas never administered to a jury in England, either in a civil or\ncriminal case, to try it according to law.\n\nThe earliest oath that I have found prescribed by law to be\nadministered to jurors is in the laws of Ethelred, (about the\nyear 1015,) which require that the jurors \"shall swear, with their\nhands upon a holy thing, that they will condemn no man that is\ninnocent, nor acquit any that is guilty.\"   4 Blackstone, 302.\n 2 Turner's History of the Anglo-Saxons, 155 Wilkins' Laws of the\nAnglo-Saxons, 117. Spelman's Glossary,  word Jurata.\n\nBlackstone assumes that this was the oath of the grand jury\n4 Blackstone, 302); but there was but one jury at the time this\noath was ordained. The institution of two juries, grand and petit,\ntook place after the Norman Conquest.\n\nHume, speaking of the administration of justice in the time of\nAlfred, says that, in every hundred,\n\n\"Twelve freeholders were chosen, who, having sworn,\ntogether with the hundreder, or presiding magistrate of that\ndivision, to administer impartial justice,  proceeded to\nthe examination of that cause which was submitted to their\njurisdiction.\"   Hume, ch. 2.\n\nBy a law of Henry II., in 1164, it was directed that the sheriff\n\"faciet jurare duodecim legales homines de vicineto seu de\nvilla, quod inde veritatem secundum conscientiam suam\nmanifestabunt,\" (shall make twelve, legal men from the\nneighborhood to swear that they will make known the truth\naccording to their conscience.)   Crabbe's History of the\nEnglish Law, 119. 1 Reeves, 87. Wilkins, 321   323.\n\nGlanville, who wrote within the half century previous to\nMagna Carta, says;\n\n\"Each of the knights summoned far this purpose (as jurors)\nought to swear that he will neither utter that which is false, nor\nknowingly conceal the truth.\"   Beames' Glanville, 65.\n\nReeve calls the trial by jury \"the trial by twelve men sworn\nto speak the truth.\"   1 Reeve's History of the English Law, 87.\n\nHenry says that the jurors \"took a solemn oath, that they\nwould faithfully discharge the duties of their office, and not\nsuffer an innocent man to be condemned, nor any guilty person\nto be acquitted.\"   3 Henry's Hist. of Great Britain, 346.\n\nThe Mirror of Justices, (written within a century after\nMagna Carta,) in the chapter on the abuses of the Common\nlaw, says:\"It is abuse to use the words, to their knowledge,\nin their oaths, to make the jurors speak upon thoughts, since\nthe chief words of their oaths be that they speak the truth.\"   p.\n249.\n\nSmith, writing in the time of Elizabeth, says that, in civil suits,\nthe jury \"be sworn to declare the truth of that issue according to\nthe evidence, and their conscience.\"   Smith's Commonwealth\nof England. edition of 1621, p. 73.\n\nIn criminal trials, he says:\n\n\"The clerk giveth the juror an oath to go uprightly betwixt the\nprince and the prisoner.\"   Ditto, p. 90. [24]\n\nHale says:\n\n\"Then twelve, and no less, of such as are indifferent and are\nreturned upon the principal panel, or the tales, are sworn to try\nthe same according to the evidence.\"   2 Hale's History of the\nCommon Law, 141.\n\nIt appears from Blackstone that, even at this day, neither in\ncivil nor criminal cases, are jurors in England sworn to try causes\naccording to law. He says tht in civil suits the jury are \"Sworn well\nand truly to try the issue between the parties; and a true verdict to\ngive according to the evidence.\"   3 Blackstone, 365.\n\n\"The issue\" to be tried is whether A owes B anything  and if so,\nhow much? or whether A has in his possession anything that\nbelongs to B; or whether A has wronged B, and ought to make\ncompensation; and if so, how much?\n\nNo statute passed by a legislature, simply as a legislature, can alter\neither of these \"issues\" in hardly any conceivable case, perhaps in\nnone. No unjust law could ever alter them in any. They are all\nmere questions of natural justice, which legislatures have no power to\nalter, and with which they have no right to interfere, further than to\nprovide for having them settled by the most competent and impartial\ntribunal that it is practicable to have, and then for having all just decisions\nenforced. And any tribunal, whether judge or jury, that attempts to\ntry these issues, has no more moral right to be swerved from the\nline of justice, by the will of a legislature, than by the will of any other\nbody of men whatever. And this oath does not require or permit a jury to\nbe so swerved.\n\nIn criminal cases, Blackstone says the oath of the jury in England\nis:\n\n\"Well and truly to try, and true deliverance make, between our\nsovereign lord, the king, and the prisoner whom they have in\ncharge, and a true verdict to give according to the evidence.\"   4\nBlackstone, 355.\n\n\"The issue\" to be tried, in a criminal case, is \"guilty,\" or \"not\nguilty.\" The laws passed by a legislature can rarely, if ever, have anything\nto do with this issue. \"Guilt\" is an intrinsic quality of actions, and can\nneither be created, destroyed, nor changed by legislation. And no tribunal\nthat attempts to try this issue can have any moral right to declare a man\nguilty, for an act that is intrinsically innocent, at the bidding of a\nlegislature, any more than at the bidding of anybody else. And this\noath does not require or permit a jury to do so.\n\nThe words, \"according to the evidence,\" have doubtless been\nintroduced into the above oaths in modern times. They are unquestionably in\nviolation of the Common Law, and of Magna Carta, if by them be\nmeant such evidence only as the government sees fit ft allow to go to the\njury. If the government can dictate the evidence, and require the jury to\ndecide according to that evidence, it necessarily dictates the conclusion to\nwhich they must arrive. In that case the trial is really a trial by the\ngovernment, and not by the jury. The jury cannot try an issue, unless they\ndetermine what evidence shall be admitted. The ancient oaths, it will be\nobserved, say nothing about \"according to the evidence.\" They obviously\ntake it for granted that the jury try the whole case; and of course that they\ndecide what evidence shall be admitted. It would be intrinsically an\nimmoral and criminal act for a jury to declare a man guilty, or to declare\nthat one man owed. money to another, unless all the evidence were\nadmitted, which they thought ought to be admitted, for ascertaining the truth.\n[25]\n\nGrand Jury. If jurors are bound to enforce all laws passed by the\nlegislature, it is a very remarkable fact than the oath of grand juries does not\nrequire them to be governed by the laws in finding indictments. There\nhave been various forms of oath administered to grand jurors; but by none of\nthem that I recollect ever to have seen, except those of the States of\nConnecticut and  Vermont, are they sworn to present men according to law.\n\nThe English form, as given in the essay on Grand Juries, written\nnear two hundred years ago, and supposed to have been written by Lord\nSomers, is as follows:\n\n\"You shall diligently inquire, and true presentment make, of all\nsuch articles, matters, and things, as shall be given you in charge,\nand of all other matters and things as shall come to your knowledge\ntouching this present service. The king's council, your fellows, and your own,\nyou  shall keep secret. You shall present no person for hatred or malice;\nneither shall you leave any one unpresented for favor, or affection,\nfor love or gain, or any hopes thereof; but in all things you shall present the\ntruth, the whole truth, and nothing but the truth, to the best of your\nknowledge. So help you God.\"\n\nThis form of oath is doubtless quite ancient, for the essay says \"our\nancestors appointed\" it.   See Essay, p. 33   34.\n\nOn the obligations of this oath, the essay says:\"If it be asked how,\nor in what manner, the (grand) juries shall inquire, the answer\nis ready, according to the best of their understandings. They only,\nnot the judges, are sworn to search diligently to find out all treasons,\n&c;., within their charge, and they must and ought to use their own\ndiscretion in the way and manner of their inquiry. No directions\ncan legally be imposed upon there by any court or judges; an honest\njury will thankfully accept good advice from judges, as their assistants;\nbut they are bound by their oaths to present the truth, the whole truth,\nand nothing but the truth, to the best of their own, not the judge's,\nknowledge. Neither can they, without breach of that oath, resign\ntheir consciences, or blindly submit to the dictates of others; and\ntherefore ought  to receive or reject such advices, as they judge them\ngood or bad. * *Nothing can be more plain and express than the\nwords of the oath are to this purpose. The jurors need not search the\nlaw books, nor tumble over heaps of old records, for the explanation\nof them. Our greatest lawyers may from hence learn more certainly\nour ancient law in this case, than from all the books in their studies.\nThe language wherein the oath is penned is known and understood by\nevery man, and the words in it have the same signification as they have\nwheresoever else they are used. The judges, without assuming to\nthemselves a legislative power, cannot put a new sense upon them,\nother than according to their genuine, common meaning. They cannot\nmagisterially impose their opinions upon the jury, and make them\nforsake the direct words of their oath, to pursue their glosses. The\ngrand inquest are bound to observe alike strictly every part of their\noath, and to use all just and proper  ways which may enable them to\nperform it; otherwise it were to say, that after men had sworn to\ninquire diligently after the truth, according to the best of their\nknowledge, they were bound to forsake all the natural and proper\nmeans which their understandings suggest for the discovery of it,\nif it be commanded by the judges.\"   Lord Somers' Essay on Grand\nJuries, p. 88.\n\nWhat is here said so plainly and forcibly of the oath and obligations of\ngrand juries, is equally applicable to the oath and obligations of\npetit juries. In both cases the simple oaths of the jurors, and not the\ninstructions of the judges, nor the statutes of kings nor legislatures,\nare their legal guides to their duties. [26]\n\nSECTION IV. The Right of Juries to fix the Sentence.\n\nThe nature of the common law courts existing prior to Magna\nCarta, such as the county courts, the hundred courts, the court-leet,\nand the court-baron, all prove, what has already been proved from\nMagna Carta, that, in jury trials, the juries fixed the sentence;\nbecause, in those courts, there was no one but the jury who could fix it,\nunless it were the sheriff, bailiff, or steward; and no one will pretend that\nit  was fixed by them. The juries unquestionably gave the \"judgment\"\nin both civil and criminal cases.\n\nThat the juries were to fix the sentence under Magna Carta, is also\nshown by statutes subsequent to Magna Carta. A statute passed\nfifty-one years after Magna Carta, says that a baker, for default in\nthe weight of his bread, \"debeat amerciari vel subire judicium pilloae,\"\n\nthat is, \"ought to be amerced, or suffer the sentence of the pillory.\"\nAnd that a brewer, for \"selling ale, contrary to the assize,\" \"debeat\namerciari, vel pati judicium tumbrelli;\" that is, \"ought to be\namerced, or suffer judgment of the tumbrel.\"   51 Henry III., st. 6. (1266.)\n\nIf the king (the legislative power) had had authority to fix the\npunishments of these offences imperatively, he would naturally\nhave said these offenders shall be amerced, and shall suffer\njudgment of the pillory and tumbrel, instead of thus simply\nexpressing the opinion that they ought to be punished in that manner.\n\nThe statute of Westminster, passed sixty years after Magna Carta,\nprovides that,\"No city, borough, nor town, nor any man, be amerced,\nwithout reasonable cause, and according to the quantity of the trespass;\nthat is to say, every freeman saving his freehold, a merchant saving\nhis merchandise, a villein his waynage, and that by his or their\npeers.\" 3 Edward I., ch. 6. (1275.)\n\nThe same statute (ch. 18) provides further, that,\"Forasmuch as the\ncommon fine and amercement of the whole county in Eyre of the\njustices for false judgments, or for other trespass, is unjustly\nassessed by sheriff's and baretors in the shires, so that the sum is many\ntimes increased, and the parcels otherwise assessed than they ought to\nbe, to the damage of the people, which be many times paid to the sheriffs\nand baretors, which do not acquit the payers; it is provided, and the\nking wills, that from henceforth such sums shall be assessed before\nthe justices in Eyre, afore their departure, by the oath of knights\nand other honest men, upon all such as ought to pay; and the justices\nshall cause the parcels to be put into their estreats, which shall be\ndelivered up unto the exchequer, and not the whole sum.\"   St. 3 Edward I.,\nch. 18, (1275.) [27]\n\nThe following statute, passed in 1341, one hundred and twenty-five\nyears after Magna Carta, providing for the trial of peers of the realm,\nand the king's ministers, contains a recognition of the principle of\nMagna Carta, that the jury are to fix the sentence.\n\n\"Whereas before this time the peers of the land have been arrested\nand imprisoned, and their temporalities, lands, and teneiments,\ngoods and cattels, asseized in the king's hands, and some put to\ndeath without judgment of their peers: It is accorded and assented,\nthat no peer of the land, officer, nor other, because of his office,\nnor of things touching his office, nor by other cause, shall be\nbrought in judgment to lose his temporalities, lands, tenements,\ngoods and cattels, nor to be arrested, nor imprisoned, outlawed,\nexiled, nor forejudged, nor put to answer, nor be judged, but by\naward (sentence) of the said peers in Parliament.\"   15 Edward III.,\nst. 1, sec. 2.\n\nSection 4, of the same statute provides,\n\n\"That in every Parliament, at the third day of every Parliament.\nthe king shall take in his hands the offices of all the ministers\naforesaid,\" (that is, \"the chancellor, treasurer, barons, and\nchancellor of the exchequer, the justices of the one bench and of\nthe other, justices assigned in the country, steward and chamberlain\nof the king's house, keeper of the privy seal, treasurer of the\nwardrobe,  controllers, and they that be chief deputed to abide nigh\nthe king's  son, Duke of Cornwall,\") \"and so they shall abide four\nor five days;  except the offices of justices of the one place or the\nother, justices assigned, barons of exchequer; so always that they\nand all other ministers be put to answer to every complaint; and if\ndefault be found in any of the said ministers, by complaint or other\nmanner, and of that attainted in Parliament, he shall be punished\nby judgment of the peers, and put out of his office, and another\nconvenient put in his place. And upon the same our said sovereign\nlord the king shall do (cause) to be pronounced and made  execution\nwithout delay, according to the judgment (sentence) of the said peers\nin the Parliament.\"\n\nHere is an admission that the peers were to fix the sentence, or\njudgment, and the king promises to make execution \"according to\"\nthat sentence.\n\nAnd this appears to be the law, under which peers of the realm\nand the great officers of the crown were tried and sentenced, for\nfour hundred years after its passage, and, for aught I know, until this\nday.\n\nThe first case given in Hargrave's collection of English State\nTrials, is that of Alexander Nevil, Archbishop of York, Robert\nVere Duke of Ireland; Michael de la Pole, Earl of Suffolk, and\nRobert Tresilian, Lord Chief Justice of England, with several\nothers, convicted of treason, before \"the Lords of Parliament,\" in\n1388. The sentences in these cases were adjudged by the \"Lords\nof Parliament,\" in the following terms, as they are reported.\n\n\"Wherefore the said Lords of Parliament, there present, as judges\nin Parliament, in this case, by assent of the king, pronounced their\nsentence, and did adjudge the said archbishop, duke, and earl, with\nRobert Tresilian, so appealed, as aforesaid, to be guilty, and\nconvicted of treason, and to be drawn and hanged, as traitors and\nenemies to the king and kingdom; and that their heirs should be\ndisinherited forever, and their lands and tenements, goods and\nchattels, forfeited to the king, and that the temporalities of the\nArchbishop of York should be taken into the king's hands.\"\n\nAlso, in the same case, Sir John Holt, Sir William Burgh, Sir John\nCary, Sir Roger Fulthorpe, and John Locton, \"were by the lords\ntemporal, by the assent of the king, adjudged to be drawn and\nhanged, as traitors, their heirs disinherited, and their lands and\ntenements, goods and chattels, to be forfeited to the king.\"\n\nAlso, in the same case, John Blake, \"of council for the king,\" and\nThomas Uske, under sheriff of Middlesex, having been convicted\nof treason, \"The lords awarded, by assent of the king, that they\nshould both be hanged and drawn as traitors, as open enemies to\nthe king and kingdom, and their heirs disinherited forever, and\ntheir lands and tenements, goods and chattels, forfeited to the king.\"\n\nAlso, \"Simon Burleigh, the king's chamberlain,\" being convicted\nof treason, \"by joint consent of the king and the lords, sentence\nwas pronounced against the said Simon Burleigh, that he should be\ndrawn from the town to Tyburn, and there be hanged till he be\ndead, and then have his head struck from his body.\"\n\nAlso, \"John Beauchamp, steward of the household to the king,\nJames Beroverse, and John Salisbury; knights, gentlemen of the\nprivy chamber, were in like manner condemned.\"   1 Hargrave's\nState Trials, first case.\n\nHere the sentences were all fixed by the peers, with the assent of\nthe king. But that the king should be consulted, and his assent\nobtained to the sentence pronounced by the peers, does not imply\nany deficiency of power on their part to fix the sentence\nindependently of the king. There are obvious reasons why they\nmight choose to consult the king, and obtain his approbation of the\nsentence they were about to impose, without supposing any legal\nnecessity for their so doing.\n\nSo far as we can gather from the reports of state trials, peers of the\nrealm were usually sentenced by those who tried them, with the\nassent of the king.  But in some instances no mention is made of\nthe assent of the king, as in the case of \"Lionel, Earl of Middlesex,\nLord High Treasurer of England,\" in 1624, (four hundred years\nafter Magna Carta,) where the sentence was as follows:\n\n\"This High Court of Parliament doth adjudge, that Lionel, Earl of\nMiddlesex, now Lord Treasurer of England, shall lose all his\noffices which he holds in this kingdom, and shall, hereafter, be\nmade incapable of any office, place, or employment in the state\nand commonwealth. That he shall be imprisoned in the tower of\nLondon, during the king's pleasure. That he shall pay unto our\nsovereign lord the king a fine of 50,000 pounds. That he shall\nnever sit in Parliament any more, and that he shall never come\nwithin the verge of the court.\"   2 Howell's Stale Trials, 1250.\n\nHere was a peer of the realm, and a minister of the king, of the\nhighest grade; and if it were ever necessary to obtain the assent of\nthe king to sentences pronounced by the peers, it would unquestionably\nhave been obtained in this instance, and his assent would have appeared\nin the sentence.\n\nLord Bacon was sentenced by the House of Lords, (l620,) no\nmention being made of the assent of the king.   The sentence is in\nthese words:\n\n\"And, therefore, this High Court doth adjudge, That the Lord\nViscount St. Albans, Lord Chancellor of England, shall undergo\nfine and ransom of 40,000 pounds. That he shall be imprisoned\nin the tower during the king's pleasure. That he shall forever be\nincapable of any office, place, or employment in the state or\ncommonwealth. That he shall never sit in Parliament, nor come\nwithin the verge of the court.\"\n\nAnd when it was demanded of him, before sentence, whether it\nwere his hand that was subscribed to his confession, and whether\nhe would stand to it; he made the following answer, which implies\nthat the lords were the ones to determine his sentence. \"My lords,\nit is my act, my hand, my heart. I beseech your lordships to be\nmerciful to a broken reed.\"   1 Hargrave's State Trials, 886   7.\n\nThe sentence against Charles the First, (1648,) after reciting\nthe grounds of his condemnation, concludes in this form:\n\n\"For all which treasons and crimes, this court doth adjudge,\nthat he, the said Charles Stuart, as a tyrant, traitor, murderer, and\npublic enemy to the good people of this nation, shall be  put\nto death by the severing his head from his body.\"\n\nThe report then adds:\n\n\"This sentence being read, the president (of the court) spake as\nfolloweth: 'This sentence now read and published, is the act,\nsentence, judgment and resolution of the whole court.'\n1 Hargrave's State Trials, 1037.\n\nUnless it had been the received \"law of the land\" that those who\ntried a man should fix his sentence, it would have required an act\nof Parliament to fix the sentence of Charles, and his sentence\nwould have been declared to be \"the sentence of the law,\"\ninstead of \"the act, sentence, judgment, and resolution of\nthe court.\"\n\nBut the report of the proceedings in \"the trial of Thomas, Earl\nof Macclesfield, Lord High Chancellor of Great Britain,\nbefore the House of Lords, for high crimes and misdemeanors\nin the execution of his office,\" in 1725, is so full on this point,\nand shows so clearly that it rested wholly with the lords to\nfix the sentence, and that the assent of the king was wholly\nunnecessary, that I give the report somewhat at length.\n\nAfter being found guilty, the earl addressed the lords, for\na mitigation of sentence, as follows:\n\n\"I am now to expect your lordships' judgment; and I hope\nthat you will be pleased to consider that I have suffered\nno small matter already in the trial, in the expense I have\nbeen at, the fatigue, and what I have suffered otherways.\n* * I have paid back 10,800 pounds of the money already; I have\nlost my office; I have undergone the censure of both houses\nof Parliament, which is in itself a severe punishment,' \"&c;., &c;.\n\nOn being interrupted, he proceeded: \"My lords, I submit\nwhether this be not proper in mitigation of your lordships'\nsentence; but whether it be or not, I leave myself to your\nlordships' justice and mercy; I am sure neither of them will be\nwanting, and I entirely submit.' * * *\n\n\"Then the said earl, as also the managers, were directed to\nwithdraw; and the House (of Lords) ordered Thomas,\nEarl of Macclesfield, to be committed to the custody of the\ngentleman usher of the black rod; and then proceeded to\nthe consideration  of what judgment,\" (that is, sentence,\nfor he had already been found guilty,) \"to give upon the\nimpeachment against the said earl.\"\n\n\"The next day, the Commons, with their speaker, being\npresent at the bar of the House (of Lords), * * * the speaker\nof the House of Commons said as follows:\n\n\"My Lords, the knights, citizens, and burgesses in\nParliament assembled, in the name of themselves, and of\nall the commons of Great Britain, did at this bar impeach\nThomas, Earl of Macclesfield, of high crimes and\nmisdemeanors, and did exhibit articles of impeachment\nagainst him, and have made good their charge. I do,\ntherefore, in the name of the knights, citizens, and\nburgesses, in Parliament assembled, and of all the commons\nof Great Britain, demand judgment (sentence) of your\nlordships against Thomas, Earl of Macclesfield, for the\nsaid high crimes and misdemeanors.'\n\n\"Then the Lord Chief Justice King, Speaker of the House\nof Lords, said: 'Mr. Speaker, the Lords are now ready\nto proceed to judgment in the case by you mentioned.'\n\n\"Thomas, Earl of Macclesfielg, the Lords have\nunanimously found you guilty of high crimes and\nmisdemeanors, charged on you by the impeachment of\nthe House of Commons, and do now, according to law,\nproceed to judgment against you, which I am ordered\nto pronounce. Their lordships' judgment is, and this high\ncourt doth adjudge, that you, Thomas, Earl of\nMacclesfield, be fined in the sum of thirty thousand\npounds unto our sovereign lord the king; and that you\nshall be imprisoned in the tower of London, and there\nkept in safe custody, until yon shall pay the said fine.'\"\n6 Hargrave's State Trials, 762   3   4.\n\nThis case shows that the principle of Magna Carta, that\na man should be sentenced only by his peers, was in force,\nand acted upon as law, in England, so lately as 1725, (five\nhundred years after Magna Carta,) so far as it applied to a\npeer of the realm, a severe punishment,\" ect., ect.\n\nBut the same principle, on this point, that applies to a peer\nof the realm, applies to every freeman. The only\ndifference between the two is, that the peers of the realm\nhave had influence enough to preserve their constitutional\nrights; while the constitutional rights of the people have been\ntrampled upon and rendered obsolete by the usurpation and\ncorruption of the government and the courts.\n\nSECTION V. The Oaths of Judges\n\nAs further proof that the legislation of the king, whether\nenacted with or without the assent and advice of his parliaments,\nwas of no authority unless it were consistent with the common\nlaw, and unless juries and judges saw fit to enforce it, it may be\nmentioned that it is probable that no judge in England was ever\nsworn to observe the laws enacted either by the king alone,\nor by the king with the advice and assent of parliament.\n\nThe judges were sworn to \"do equal law, and execution of right,\nto all the king's subjects, rich and poor, without having\nregard to any person;\" and that they will \"deny no man\ncommon right;\" [28] but they were not sworn to obey or\nexecute any statutes of the king, or of the king and parliament.\nIndeed, they are virtually sworn not to obey any statutes that\nare against \"common right,\" or contrary to \"the common law,\"\nor \"law of the land;\" but to \"certify the king thereof\"  that is,\nnotify him that his statutes are against the common law;\nand then proceed to execute the common law, notwithstanding\nsuch legislation to the contrary. The words of the oath on this point\nare these:\n\n\"That ye deny no man common right by (virtue of) the king's\nletters, nor none other man's, nor for none other cause; and in\ncase any letters come to you contrary to the law, (that is, the\ncommon law, as will be seen on reference to the entire oath given\nin the note,) that ye do nothing by such letters, but certify the\nking thereof, and proceed to execute the law, (that is, the\ncommon law,) notwithstanding the same letters.\"\n\nWhere it is considered that the king was the sole legislative\npower, and that he exercised this power, to a great extent, by\norders in council, and by writs and \"letters\" addressed\noftentimes to some sheriff, or other person, and that his\ncommands, when communicated to his justices, or any\nother person, \"by letters,\" or writs, under seal, had as much\nlegal authority as laws promulgated in any other form\nwhatever, it will be seen that this oath of the justices\nabsolutely required that they disregard any legislation that\nwas contrary to \"common right,\" or \"the common law,\"\nand notify the king that it was contrary to common right,\nor the common law, and then proceed to execute the\ncommon law, notwithstanding such legislation. [29]\n\nIf there could be any doubt that such was the meaning\nof this oath, that doubt would be removed by a statute\npassed by the king two years afterwards, which fully\nexplains this oath, as follows:\n\n\"Edward, by the Grace of God, ect., to the Sheriff of\nStafford, greeting: Because that by divers complaints\nmade to us, we have perceived that the Law of the Land,\nwhich we by our oath are bound to maintain, is the less\nwell kept, and the execution of the same disturbed many\ntimes by maintenance and procurement, as well in the\ncourt as in the country; we greatly moved of conscience\nin this matter, and for this cause desiring as much for\nthe  pleasure of God, and ease and quietness of our\nsubjects,  as to save our conscience, and for to save\nand keep our said oath, by the assent of the great men\nand other wise men of our council, we have ordained\nthese things following:\n\n\"First, we have commanded all our justices, that they\nshall from henceforth do equal law and execution of\nright to all our subjects, rich and poor, without having\nregard to any person, and without omitting to do right\nfor any letters or commandment which may come to\nthem from us, or from any other, or by any other cause.\nAnd if that any letters, writs, or commandments come\nto the justices, or to other deputed to do law and right\naccording to the usage of the realm, in disturbance of\nthe law, or of the execution of the same, or of right to\nthe parties, the justices and other aforesaid shall\nproceed and hold their courts and processes,\nwhere the pleas and matters be depending before\nthem, as if no such letters, writs, or commandments\nwere come to them; and they shall certify us and\nour council of such commandments which be\ncontrary to the law, (that is, \"the law of the land,\"\nor common law,) as afore is said.\" [30] And to the\nintent that our justices, shall do even right to all\npeople in the manner aforesaid, without more\nfavor showing to one than to another, we have\nordained and caused our said justices to be sworn,\nthat they shall not from henceforth, as long as\nthey shall be in the office of justice, take fee nor\nrobe of any man, but of ourself, and that they shall\ntake no gift nor reward by themselves, nor by other,\nprivily nor apertly, of any man that hath to do before\nthem by any way, except meat and drink, and that\nof small value: and that they shall give no counsel\nto great men or small, in case where we be party,\nor which do or may touch us in any point, upon\npain to be at our will, body, lands, and goods, to\ndo thereof as shall please us, in case they do contrary.\nAnd for this cause we have increased the fees of\nthe same, our justices, in such manner as it ought\nreasonably to suffice them.\"   20 Edward III.,\nch. l. (1346.)\n\nOther statutes of similar tenor have been enacted\nas follows:\n\n\"It is accorded and established, that it shall not\nbe commanded by the great seal, nor the little seal,\nto disturb or delay common right; and though such\ncommandments do come, the justices shall not\ntherefore leave (omit) to do right in any point.\"\nSt. 2 Edward III., ch. 8. (1328.)\n\n\"That by commandment of the great seal, or privy\nseal, no point of this statute shall be put in delay;\nnor that the justices of whatsoever place it be shall\nlet (omit) to do the common law, by commandment,\nwhich shall come to them under the great seal, or the\nprivy seal.\"   14 Edward III, st. 1, ch. 14. (1340.)\n\n\"It is ordained and established, that neither letters\nof the signet, nor of the king's privy seal, shall be\nfrom henceforth sent in damage or prejudice of the\nrealm, nor in disturbance of the law\" (the common law).\n11 Richard II., ch. 10. (1387.)\n\nIt is perfectly apparent from these statutes, and from\nthe oath administered to the justices, that it was a\nmatter freely confessed by the king himself, that his\nstatutes were of no validity, if contrary to the common\nlaw, or \"common right.\"\n\nThe oath of the justices, before given, is, I presume,\nthe same that has been administered to judges in\nEngland from the day when it was first prescribed to\nthem, (1344,) until now. I do not find from the English\nstatutes that the oath has ever been changed. The Essay\non Grand Juries, before referred to, and supposed to have\nbeen written by Lord Somers, mentions this oath\n(page 73) as being still administered to judges, that is,\nin the time of Charles II., more than three hundred years\nafter the oath was first ordained.\n\nIf the oath has never been changed, it follows that\njudges have not only never been sworn to support any\nstatutes whatever of the king, or of parliament, but that,\nfor five hundred years past, they actually have been\nsworn to treat as invalid all statutes that were contrary\nto the common law.\n\nSECTION VI. The Coronation Oath.\n\nThat the legislation of the king was of no authority over\na jury, is further proved by the oath taken by the kings\nat their coronation. This oath seems to have been\nsubstantially the same, from the time of the Saxon kings,\ndown to the seventeenth century, as will be seen from the\nauthorities hereafter given.\n\n\nThe purport of the oath is, that the king swears to maintain\nthe law of the land   that is, the common law. In\nother words, he swears \"to concede and preserve to\nthe English people the laws and customs conceded to them\nby the ancient, just, and pious English kings, * * and\nespecially the laws, customs, and liberties conceded to\nthe clergy and people by the illustrious king Edward;\" * *\nand \"the just laws and customs which the common people\nhave chosen, (quas vulgus elegit).\"\n\nThese are the same laws and customs which were called\nby the general name of \"the law of the land,\" or \"the\ncommon law,\" and, with some slight additions, were\nembodied in Magna Carta.\n\nThis oath not only forbids the king to enact any statutes\ncontrary to the common law, but it proves that his statutes\ncould be of no authority over the consciences of a jury;\nsince, as has already been sufficiently shown, it was one\npart of this very common law itself,   that is, of the\nancient \"laws, customs, and liberties,\" mentioned in the\noath,   that juries should judge of all questions that came\nbefore them, according to their own consciences,\nindependently of the legislation of the king.\n\nIt was impossible that this right of the jury could subsist\nconsistently with any right, on the part of the king, to\nimpose any authoritative legislation upon them. His\noath, therefore, to maintain the law of the land, or the\nancient \"laws, customs, and liberties,\" was equivalent\nto an oath that he would never assume to impose laws upon\njuries, as imperative rules of decision, or take from\nthem the right to try all cases according to their own\nconsciences. It is also an admission that he had no\nconstitutional power to do so, if he should ever desire\nit. This oath, then, is conclusive proof that his legislation\nwas of no authority with a jury, and that they were\nunder no obligation whatever to enforce it, unless it\ncoincided with their own ideas of justice.\n\nThe ancient coronation oath is printed with the\nStatutes of the Realm, vol. i., p. 168, and is as follows: [31]\n\nTRANSLATION.\n\n\"Form of the Oath of the King of England, on his\nCoronation.\n\n(The Archbishop of Canterbury, to whom, of right and\ncustom of the Church of Canterbury, ancient and\napproved, it pertains to anoint and crown the kings of\nEngland, on the day of the coronation of the king, and\nbefore the king is crowned, shall propound the\nunderwritten questions to the king.)\n\nThe laws and customs, conceded to the English people\nby the ancient, just, and pious English kings, will you\nconcede and preserve to the same people, with the\nconfirmation of an oath? and especially the laws, customs,\nand liberties conceded to the clergy and people by the\nillustrious king Edward?\n\n(And the king shall answer,) I do concede, and will\npreserve them, and confirm them by my oath.\n\nWill yon preserve to the church of God, the clergy, and\nthe people, entire peace and harmony in God, according\nto your powers?\n\n(And the king shall answer,) I will.\n\nIn all your judgments, will you cause equal and right\njustice and discretion to be done, in mercy and truth,\naccording to your powers?\n\n(And the king shall answer,) I will.\n\nDo you concede that the just laws and customs, which\nthe common people have chosen, shall be preserved;\nand do you promise that they shall be protected by you,\nand strengthened to the honor of God, according to\nyour powers?\n\n(And the king shall answer,) I concede and promise.\"\n\nThe language used in the last of these questions,\n\"Do you concede that the just laws and customs,\nwhich the common people have chosen, (quas vulgus\nelegit,) shall be preserved?\" ect., is worthy of especial\nnotice, as showing that the laws, which were to be\npreserved, were not necessarily all the laws which\nthe kings enacted, but only such of them as the common\npeople had selected or approved.\n\nAnd how had the common people made known their\napprobation or selection of these laws? Plainly, in no\nother way than this   that the juries composed of the\ncommon people had voluntarily enforced them.\nThe common people had no other legal form of making\nknown their approbation of particular laws.\n\nThe word \"concede,\" too, is an important word. In the\nEnglish statutes it is usually translated grant  as if with\nan intention to indicate that \"the laws, customs, and\nliberties\" of the English people were mere privileges,\ngranted to them by the king; whereas it should be\ntranslated concede, to indicate simply an acknowledgment,\non the part of the king, that such were the laws, customs,\nand liberties, which had been chosen and established\nby the people themselves, and of right belonged to them,\nand which he was bound to respect.\n\nI will now give some authorities to show that the foregoing\noath has, in substance, been the coronation oath from\nthe times of William the Conqueror, (1066,) down to the\ntime of James the First, and probably until 1688.\n\nIt will be noticed, in the quotation from Kelham, that he\nsays this oath (or the oath of William the Conqueror) is\n\"in sense and substance the very same with that which the\nSaxon kings used to take at their coronations.\"\n\nHale says:\n\n\"Yet the English were very zealous for them,\" (that is, for\nthe laws of Edward the Confessor,) \"no less or otherwise\nthan they are at this time for the Great Charter; insomuch\nthat they were never satisfied till the said laws were\nreenforced, and mingled, for the most part, with the\ncoronation oath of king William I., and some of his\nsuccessors.\"   1 Hale's History of Common Law, 157.\n\nAlso, \"William, on his coronation, had sworn to govern\nby the laws of Edward the Confessor, some of which had\nbeen reduced into writing, but the greater part consisted\nof the immemorial customs of the realm.\"   Ditto, p. 202,\nnote L.\n\nKelham says:\n\n\"Thus stood the laws of England at the entry of William I.,\nand it seems plain that the laws, commonly called the laws\nof Edward the Confessor, were at that time the standing\nlaws of the kingdom, and considered the great rule of their\nrights and liberties; and that the Eriglish were so zealous\nfor them, 'that they were never satisfied till the said laws\nwere reenforced, and mingled, for the most part, with the\ncoronation oath.' Accordingly, we find that this great\nconqueror, at his coronation on the Christmas day succeeding\nhis victory, took an oath at the altar of St. Peter, Westminster,\nin sense and substance the very same with that which the\nSaxon kings used to take at their coronations. * * And at\nBarkhamstead, in the fourth year of his reign, in the presence\nof Lanfranc, Archbishop of Canterbury, for the quieting of\nthe people, he swore that he would inviolably observe the good\nand approved ancient laws which had been made by the devout\nand pious kings of England, his ancestors, and chiefly by King\nEdward; and we are told that the people then departed in good\nhumor.\"   Kelham's Preliminary Discourse to the Laws of\nWilliam the Conqueror. See, also, 1 Hale's History of the\nCommon Law, 186.\n\nCrabbe says that William the Conqueror \"solemnly swore that\nhe would observe the good and approved laws of Edward the\nConfessor.\"   Crabbe's History of the English Law, p. 43.\n\nThe successors of William, up to the time of Magna Carta,\nprobably all took the same oath, according to the custom of the\nkingdom; although there may be no historical accounts extant\nof the oath of each separate king. But history tells us specially\nthat Henry I., Stephen, and Henry II., confirmed these ancient\nlaws and customs. It appears, also, that the barons desired of\nJohn (what he afterwards granted by Magna Carta) \"that the laws\nand liberties of King Edward, with other privileges granted to the\nkingdom and church of England, might be confirmed, as they\nwere contained in the charters of Henry the First; further alleging,\nthat at the time of his absolution, he promised by his oath to\nobserve these very laws and liberties.\"   Echard's History of\nEngland, p. 105 6.\n\nIt would appear, from the following authorities, that since\nMagna Carta the form of the coronation oath has been\n\"to maintain the law of the land,\"   meaning that law as\nembodied in Magna Carta. Or perhaps it is more probable that\nthe ancient form has been still observed, but that, as its substance\nand purport were \"to maintain the law of the land,\" this latter\nform of expression has been used, in the instances here cited, from\nmotives of brevity and convenience. This supposition is the\nmore probable, from the fact that I find no statute prescribing a\nchange in the form of the oath until 1688.\n\nThat Magna Carta was considered as embodying \"the law of\nthe land,\" or \"common law,\" is shown by a statute passed by\nEdward I., wherein he \"grants,\" or concedes,\n\n\"That the Charter of Liberties and the Charter of the Forest\n* * shall be kept in every point, without breach, * * and that our\njustices, sheriffs, mayors, and other ministers, which, under\nus, have the laws of our land [32] to guide, shall allow the said\ncharters pleaded before them in judgment, in all their points,\nthat is, to wit, the Great Charter as the Common Law, and the\nCharter of the Forest for the wealth of the realm.\n\n\"And we will, that if any judgment be given from henceforth,\ncontrary to the points of the charters aforesaid, by the justices, or\nby any other our ministers that hold plea before them against\nthe points of the charters, it shall be undone, and holden for\nnaught.\"   25 Edward I., ch. 1 and 2. (1297.)\n\nBlackstone also says:\n\n\"It is agreed by all our historians that the Great Charter of King\nJohn was, for the most part, compiled from the ancient customs of\nthe realm, or the laws of Edward the Confessor; by which they\nusually mean the old common law which was established under\nour Saxon princes.\"   Blackstone's Introduction to the Charters.\nSee Blackstone's Law Tracts, 289.\n\nCrabbe says:\n\n\"It is admitted, on all hands, that it (Magna Carta) contains nothing\nbut what was confirmatory of the common law, and the\nancient usages of the realm, and is, properly speaking, only an\nenlargement of the charter of Henry I., and his successors.\"\nCrabbe's History of the English Law, p. 127.\n\nThat the coronation oath of the kings subsequent to Magna Carta\nwas, in substance, if not in form, \"to maintain this law of the\nland, or common law,\" is shown by a statute of Edward Third,\ncommencing as follows:\n\n\"Edward, by the Grace of God, ect., ect., to the Sheriff of\nStafford, Greeting: Because that by divers complaints made\nto us, we have perceived that the law of the land, which we\nby oath are bound to maintain,\" ect.   St. 20 Edward III. (1346.)\n\nThe following extract from Lord Somers' tract on Grand Juries\nshows that the coronation oath continued the same as late as\n1616, (four hundred years after Magna Carta.) He says:\n\n\"King James, in his speech to the judges, in the Star Chamber,\nAnno 1616, told them, 'That he had, after many years, resolved\nto renew his oath, made at his coronation, concerning justice,\nand the promise therein contained for maintaining the law of\nthe land.' And, in the next page save one, says, 'I was sworn to\nmaintain the law of the land, and therefore had been perjured\nif I had broken it. God is my judge, I never intended it.'\n\"Somers on Grand Juries, p. 82.\n\nIn 1688, the coronation oath was changed by act of Parliament,\nand the king was made to swear:\n\n\"To govern the people of this kingdom of England, and the\ndominions thereto belonging, according to the statutes in\nParliament agreed on, and the laws and customs of the\nsame.\"   St. 1 William and Mary, ch. 6. (1688.)\n\nThe effect and legality of this oath will hereafter be\nconsidered. For the present it is sufficient to show, as has\nbeen already sufficiently done, that from the Saxon times\nuntil at least as lately as 1616, the coronation oath has\nbeen, in substance, to maintain the law of the land, or\nthe common law, meaning thereby the ancient Saxon\ncustoms, as embodied in the laws of Alfred, of Edward\nthe Confessor, and finally in Magna Carta.\n\nIt may here be repeated that this oath plainly proves that\nthe statutes of the king were of no authority over juries, if\ninconsistent with their ideas of right; because it was one\npart of the common law that juries should try all causes\naccording to their own consciences, any legislation of the\nking to the contrary notwithstanding.[33]\n\n[1] Hale says:\"The trial by jury of twelve men was the usual\ntrial among the Normans, in most suits; especially in assizes, et\njuris utrum.\"   1 Hale's History of the Common Law, 219\n\nThis was in Normandy, before the conquest of England by the\nNormans. See Ditto, p. 218.\n\nCrabbe says:\"It cannot be denied that the practice of submitting\ncauses to the decision of twelve men was universal among all the\nnorthern tribes (of Europe) from the very remotest antiquity.\"\nCrabbe's History of the English Law, p. 32.\n\n[2] \"The people, who in every general council or assembly could\noppose and dethrone their sovereigns, were in little dread of\ntheir encroachments on their liberties; and kings, who found\nsufficient employment in keeping possession of their crowns,\nwould not likely attack the more important privileges of their\nsubjects.\"\n\n[3] This office was afterwards committed to sheriffs. But even\nwhile the court was held by the lord, \"the Lord was not judge,\nbut the Pares (peers) only.\"   Gilbert on the Court of Exchequer,\n61-2.\n\n[4] The opinion expressed in the text, that the Witan had no\nlegislative authority, is corroborated by the following\nauthorities:\n\n\"From the fact that the new laws passed by the king and the Witan\nwere laid before the shire-mote, (county court,) we should be\nalmost justified in the inference that a second sanction was\nnecessary before they could have the effect of law in that\nparticular county.\"   Durham's Middle Ages, Sec. 2, B. 2, Ch. l.\n57 Lardner's Cab. Cyc., 53.\n\nThe \"second sanction\" required to give the legislation of the\nking and Witan the effect of law, was undoubtedly, I think, as a\ngeneral thing, the sanction of a jury. I know of no evidence\nwhatever that laws were ever submitted to popular vote in the\ncounty courts, as this author seems to suppose possible. Another\nmode, sometimes resorted to for obtaining the sanction of the\npeople to the laws of the Witan, was, it seems, to persuade the\npeople themselves to swear to observe them. Mackintoshsays:\n\n\"The preambles of the laws (of the Witan) speak of the infinite\nnumber of liegemen who attended, as only applauding the\nmeasures of the assembly. But this applause was neither so\nunimportant to the success of the measures, nor so precisely\ndistinguished from a share in legislation, as those who read history\nwith a modern eye might imagine. It appears that under Athelstan\nexpedients were resorted to, to obtain a consent to the law from\ngreat bodies of the people in their districts, which their numbers\nrendered impossible in a national assembly. That monarch appears\nto have sent commissioners to hold shire-gemotes or county\nmeetings, where they proclaimed the laws made by the king and\nhis counsellors, which, being acknowledged and sworn to at these\nfolk-motes (meetings of the people) became, by their assent,\ncompletely binding on the whole nation.\"   Mackintosh's Hist. of\nEngland, Ch. 2. 45 Lardner's Cab. Cc., 75.\n\n[5] Page 31.\n\n[6] Hallam says, \"It was, however, to the county court that an\nEnglish freeman chiefly looked for the maintenance of his civil\nrights.\"   2 Middle Ages, 392.\n\nAlso, \"This (the county court) was the great constitutional\njudicature in all ques- tions of civil right.\"   Ditto, 395.\nAlso, \"The liberties of these Anglo-Saxon thanes were chiefly\nsecured, next to their swords and their free spirits, by the\ninestimable right of deciding civil and criminal suits in their\nown county courts.\"   Ditto, 899.\n\n[7] \"Alfred may, in one sense, be called the founder of these\nlaws, (the Saxon,) for until his time they were an unwrittencode,\nbut he expressly says, 'that I, Alfred, collected the good laws of\nour forefathers into one code, and also I wrote them down'\n-- which is a decisive fact in the history of our laws well\nworth noting.\"   Introduction to Gilbert's History of the Common\nPleas, p. 2, note.\n\nKelham says, \"Let us consult our own lawyers and historians, and\nthey will tell as that Alfred, Edgar, and Edward the Confessor,\nwere the great compilers and restorers of the English Laws.\"\nKelham's Preliminary Discourse to the Laws of William the\nConqueror, p. 12. Appendix to Kelham's Dictionary of the Norman\nLanguage.\n\n\"He (Alfred) also, like another Theodosius, collected the various\ncustoms that he found dispersed in the kingdom, and reduced and\ndigested them into one uniform system, or code of laws, in his\nsom-bec, or liber judicialis (judicial book). This he compiled\nfor the use of the court baron, hundred and county court, the\ncourt-leet and sheriff's toarn, tribunals which he established\nfor the trial of all causes, civil and criminal, in the very\ndistricts wherein the complaints arose.\"   4 Blackstone, 411.\n\nAlfred himself says, \"Hence I, King Alfred, gathered these\ntogether, and commanded many of those to be written down which\nour forefathers observed   those which I liked   and those which\nI did not like, by the advice of my Witan, I threw aside. For I\ndurst not venture to set down in writing over many of my own,\nsince I knew not what among them would please those that should\ncome after us. But those which I met with either of the days of\nme, my kinsman, or of Offa, King of Mercia, or of Aethelbert, who\nwas the first of the English who received baptism   thse which\nappeared to me the justest   I have here collected, and abandoned\nthe others. Then I, Alfred, King of the West Saxons, showed these\nto all my Witan, and they then said that they were all willing to\nobserve them.\"   Laws of Alfred, translated by R. Price, prefixed\nto Mackintosh's History of England, vol. l. 45 Lardner's Cab. Cyc.\n\n\"King Edward * * projected and begun what his grandson, King\nEdward the Confessor, afterwards completed, viz., one uniform\ndigest or body of laws to be observed throughout the whole\nkingdom, being probably no more than a revival of King Alfred's\ncode, with some improvements suggested by necessity and\nexperience, particularly the incorporating some of the British,\nor, rather, Mercian customs, and also such of the Danish\n(customs) as were reasonable and approved, into the West Saxon\nLage, which was still the ground-work of the whole. And this\nappears to be the best supported and most plausible conjecture,\n(for certainty is not to be expected,) of the rise and original\nof that admirable system of maxims and unwritten customs which\nis now known by the name of the common law, as extending its\nauthority universally over all the realm, and which is doubtless\nof Saxon parentage.\"   4 Blackstone, 412.\n\n\"By the Lex Terrae and Lex Regni is understood the laws of\nEdward the Confessor, confirmed and enlarged as they were by William\nthe Conqueror; and this Constitution or Code of Laws is what even to\nthis day are called 'The Common Law of the Land.'\"   Introduction\nto Gilbert's History of the Common Pleas, p. 22, note.\n\n\n[8] Not the conqueror of the English people, (as the friends of\nliberty maintain,) but only of Harold the usurper.   See Hale's\nHistory of the Common, Law, ch. 5.\n\n[9] For all these codes see Wilkins' Laws of the Anglo-Saxons.\n\n\"Being regulations adapted to existing institutions, the\nAnglo-Saxon statutes are concise and technical, alluding to the\nlaw which was then living and in vigor, rather than defining it.\nThe same clauses and chapters are often repeated word, for word,\nin the statutes of subsequent kings, showing that enactments\nwhich bear the appearance of novelty are merely declaratory.\nConsequently the appearance of a law, seemingly for the first\ntime, is by no means to be considered as a proof that the matter\nwhich it contains is new; nor can we trace the progress of the\nAnglo-Saxon institutions with any degree of certainty, by\nfollowing the dates of the statutes in which we find them first\nnoticed. All arguments founded on the apparent chronology of the\nsubjects included in the laws, are liable to great fallacies.\nFurthermore, a considerable portion of the Anglo-Saxon law was\nnever recorded in writing. There can be no doubt but that the\nrules of inheritance were well established and, defined; yet we\nhave not a single law, and hardly a single document from which\nthe course of the descent of land can be inferred. * * Positive\nproof cannot be obtained of the commencement of any institution,\nbecause the first written law relating to it may possibly be\nmerely confirmatory or declaratory; neither can the non-existence\nof any institution be inferred from the absence of direct\nevidence. Written laws were modified and controlled by customs\nof which no trace can be discovered until after the lapse of\ncenturies, although those usages must have been in constant vigor\nduring the long interval of silence.\"   1 Palgrave's Rise and\nProgress of the English Commonwealth, 58-9.\n\n[10] Rapin says, \"The customs now practised in England are, for\nthe most part, the same as the Anglo-Saxons brought with them\nfrom Germany.\"   Rapin's Dissertation on the Government of the\nAnglo-Saxons, vol. 2, Oct Ed., p. 138. See Kelham's Discourse\nbefore named.\n\n[11] Hallam says, \"The county of Sussex contains sixty-five\n('hundreds'); that of Dorset forty-three; while Yorkshire has\nonly twenty-six; and Lancashire but six.\"   2 Middle Ages, 391.\n\n[12] Excepting also matters pertaining to the collection of the\nrevenue, which were determined in the king's court of exchequer.\nBut even in this court it was the law \"that none be amerced but\nby his peers.\"   Mirror of Justices, 49.\n\n[13] \"For the English laws, although not written, may, as it\nshould seem, and that without any absurdity, be termed laws,\n(since this itself is law   that which pleases the prince has the\nforce of law,) I mean those laws which it is evident were\npromuulgated by the advice of the nobles and the authority of the\nprince, concerning doubts to be settled in their assembly. For if\nfrom the mere want of writing only, they should not be considered\nlaws, then, unquestionably, writing would seem to confer more\nauthority upon laws themselves, than either the equity of the\npersons constituting, or the reason of those framing them.\"\nGlanville's Preface, p. 38. (Glanville was chief justice of Henry\nII., 1180.) 2 Turner's History of the Anglo-Saxons, 280.\n\n[14] Mackintosh's History of England, ch. 3. Lardner's Cabinet\nCyclopedia, 286.\n\n[15] If the laws of the king were received as authoritative by\nthe juries, what occasion was there for his appointing special\ncommissioners for the trial of offences, without the intervention\nof a jury, as he frequently did, in manifest and acknowledged\nviolation of Magna Carta, and \"the law of the land?\" These\nappointments were undoubtedly made for no other reason than that\nthe juries were not sufficiently subservient, but judged\naccording to their own notions of right, instead of the will of\nthe king   whether the latter were expressed in his statutes, or\nby his judges.\n\n[16] Of course, Mr. Reeve means to be understood that, in the\nhundred court, and court-leet, the jurors were the judges, as he\ndeclares them to have been in the county court; otherwise the\n\"bailiff\" or \"steward\" must have been judge.\n\n[17] The jurors were sometimes called \" assessors,\" because they\nassessed, or determined the amount of fines and amercements to\nbe imposed.\n\n[18] \"The barons of the Hundred\" were the freeholders. Hallam\nsays: \"The word baro, originally meaning only a man, was of very\nlarge significance, and is not unfrequently applied to common\nfreeholders, as in the phrase court-baron.\"   3 Middle Ages,\n14-15.\n\nBlackstone says: \"The court-baron *  * is a court of common law,\nand it is the court of the barons, by which name the freeholders\nwere sometimes anciently called; for that it is held before the\nfreeholders who owe suit and service to the manor.\"   3\nBlackstone, 33.\n\n[19] The ancient jury courts kept no records, because those who\ncomposed the courts could neither make nor read records. Their\ndecisions were preserved by the memories of the jurors and other\npersons present.\n\n[20] Stuart says:\n\n\"The courts, or civil arrangements, which were\nmodelled in Germany, preserved the independence of the people;\naud having followed the Saxons into England, and continuing their\nimportance, they supported the envied liberty we boast of.\n\n\"As a chieftain led out his retainers to the field, and governed\nthem during war; so in peace he summoned them together, and\nexerted a civil jurisdiction. He was at once their captain and\ntheir judge. They constituted his court; and having inquired with\nhim into the guilt of those of their order whom justice had\naccused, they assisted him to enforce his decrees.\n\n\"This court (the court-baron) was imported into England; but the\ninnovation which conquest introduced into the fashion of the\ntimes altered somewhat its appearance.\n\n\"The head or lord of the manor called forth his attendants to his\nhall. * * He inquired into the breaches of custom, and of\njustice, which were committed within the precincts of his\nterritory, and with his followers, who sat with him as judges, he\ndetermined in all matters of debt, and of trespass to a certain\namount. He possessed a similar jurisdiction with the chieftain in\nGermany, and his tenants enjoyed an equal authority with the\nGerman retainers.\n\n\"But a mode of administration which intrusted so much power to\nthe great could not long be exercised without blame or injustice.\nThe German, guided by the candor of his mind, and entering into\nall his engagements with the greatest ardor, perceived not, at\nfirst, that the chieftain to whom he submitted his disputes might\nbe swayed, in the judgments he pronounced, by partiality,\nprejudice, or interest; and that the influence he maintained with\nhis followers was too strong to be restrained by justice.\nExperience instructed him of his error\", he acknowledged the\nnecessity of appealing from his lord; and the court of the\nHundred was erected.\n\n\"This establishment was formed both in Germany and England, by\nthe inhabitants of a certain division, who extened their\njurisdiction over the territory they occupied. [21] They bound\nthemselves under a penalty to assemble at stated times; and\nhaving elected the wisest to preside over them, they judged, not\nonly all civil and criminal matters, but of those also which\nregarded religion and the priesthood. The judicial power thus\ninvested in the people was extensive; they were able to preserve\ntheir rights, and attended this court in arms.\n\n[21] \"It was the freemen in Germany, and the possessors of land\nin England, who were suitors (jurors) in the hundred court. These\nranks of men were the same. The alteration which had happened in\nrelation to property had invested the German freemen with land or\nterritory.\"\n\n\"As the communication, however, and intercourse, of the\nindividuals of a German community began to be wider, and more\ngeneral, as their dealings enlarged, and as disputes arose among\nthe members of different hundreds, the insufficiency of these\ncourts for the preservation of order was gradually perceived. The\nshyre mote, therefore, or county court, was instituted; and it\nformed the chief source of justice both in Germany and England.\n\n\"The powers, accordingly, which had been enjoyed by the court of\nthe hundred, were considerably impaired. It decided no longer\nconcerning capital offences; it decided not concerning matters of\nliberty, and the property of estates, or of slaves; its\njudgments, in every case, became subject to review; and it lost\nentirely the decision of causes, when it delayed too long to\nconsider them.\n\n\"Every subject of claim or contention was brought, in the first\ninstance, or by appeal, to the county court; and the earl, or\neorldorman, who presided there, was active to put the laws in\nexecution. He repressed the disorders which fell out within the\ncircuit of his authority; and the least remission in hi duty, or\nthe least fraud he committed, was complained of and punished. He\nwas elected from among the great, and was above the temptation\nof\na bribe; but, to encourage his activity, he was presented with a\nshare of the territory he governed, or was entitled to a\nproportion of the fines and profits of justice. Every man, in his\ndistrict, was bound to inform him concerning criminals, and to\nassist him to bring them to trial; and, as in rude and violent\ntimes the poor and helpless were ready to be oppressed by the\nstrong, he was instructed particularly to defend them.\n\n\"His court was ambulatory, and assembled only twice a year,\nunless the distribution of justice required that its meetings\nshould be oftener. Every freeholder in the county was obliged to\nattend it; and should he refuse this service, his possessions\nwere seized, and he was forced to find surety for his appearance.\nThe neighboring earls held not their courts on the same day; and,\nwhat seems very singular, no judge was allowed, after meals, to\nexercise his office.\n\n\"The druids also, or priests, in Germany, as we had formerly\noccasion to remark, and the clergy in England, exercised a\njurisdiction in the hundred and county courts. They instructed\nthe people in religious duties, and in matters regarding the\npriesthood; and the princes, earls, or eorldormen, related to\nthem the laws and customs of the community. These judges were\nmutually a check to each other; but it was expected that they\nshould agree in their judgments, and should willingly unite their\nefforts for the public interest. [22]\n\n\"The meeting (the county court) was opened with a discourse by\nthe bishop, explaining, out of the Scriptures and ecclesiastical\ncanons, their several duties as good Christians and members of\nthe church. After this, the alderman, or one of his assessors,\nmade a discourse on the laws of the land, and the duties of good\nsubjects and good citizens. When these preliminaries were over,\nthey proceede to try and determine, first the causes of the\nchurch, next the pleas of the crown, and last of all the\ncontroversies of private parties.\"   8 Henry's History of Great\nBritain, 348.\n\nThis view is corroborated by Tyrrell's Introduction to the\nHistory of England; p. 83-84, and by Spence's Origin of the Laws\nand Political Institutions of Modern Europe, p. 447, and the note\non the same page. Also by a law of Canute to this effect, In\nevery county let there be twice a year an assembly, whereat the\nbishop and the earl shall be present, the one to instruct the\npeople in divine, the other in human, laws.   Wilkins, p. 136.\n\n\"But the prince or earl performed not, at all times, in person,\nthe obligations of his office. The enjoyment of ease and of\npleasure, to which in Germany he had delivered himself over,\nwhen disengaged from war, and the mean idea he conceived\nof the drudgery of civil affairs, made him often delegate to an\ninferior person the distribution of justice in his district. The\nsame sentiments were experienced by the Saxon nobility;\nand the service which they owed by their tenures, and the high\nemployments they sustained, called them often from the\nmanagement of their counties. The progress, too, of commerce,\ngiving an intricacy to cases, and swelling the civil code, added\nto the difficulty of their office, and made them averse to its duties.\nSheriffs, therefore, or deputies, were frequently appointed to\ntransact their business; and though these were at first under\nsome subordination to the earls, they grew at length to be\nentirely independent of them. The connection of jurisdiction and\nterritory ceasing to prevail, and the civil being separated from\nthe ecclesiastical power, they became the sole and proper\nofficers for the direction of justice in the counties.\n\n\"The hundred, however, and county courts were not equal of\nthemselves for the purposes of jurisdiction and order. It was\nnecessary that a court should be erected, of supreme authority,\nwhere the disputes of the great should be decided, where the\ndisagreeing sentiments of judges should be reconciled, and where\nprotection should be given to the people against their fraud and\ninjustice.\n\n\"The princes accordingly, or chief nobility, in the German\ncommunities, assembled together to judge of such matters. The\nSaxon nobles continued this prerogative; and the king, or, in his\nabsence, the chief justiciary, watched over their deliberations.\nBut it was not on every trivial occasion that this court\ninterested itself. In smaller concerns, justice was refused\nduring three sessions of the hundred, and claimed without effect,\nat four courts of the county, before there could lie an appeal to\nit.\n\n\"So gradually were these arrangements established, and so\nnaturally did the varying circumstances in the situation of the\nGermans and Anglo-Saxons direct those successive improvements\nwhich the preservation of order, and the advantage of society,\ncalled them to adopt. The admission of the people into the courts\nof justice preserved, among the former, that equality of ranks\nfor which they were remarkable; and it helped to overturn, among\nthe latter, those envious distinctions which the feudal system\ntended to introduce, and prevented that venality in judges, and\nthose arbitrary proceedings, which the growing attachment to\ninterest, and the influence of the crown, might otherwise have\noccasioned.\"   Stuart on the Constitution of England, p. 222 to\n245.\n\n\"In the Anglo-Saxon period, accordingly, twelve only were\nelected; and these, together with the judge, or presiding officer\nof the district, being sworn to regard justice, and the voice of\nreason, or conscience, all causes were submitted to them.\"\nDitto, p. 260.\n\n\"Before the orders of men were very nicely disinguished, the\njurors were elected from the same rank. When, however, a regular\nsubordination of orders was established, and when a knowledge of\nproperty had inspired the necessitous with envy, and the rich\nwith contempt, every man was tried by his equals. The same spirit\nof liberty which gave rise to this regulation attended its progress.\nNor could monarchs assume a more arbitrary method of proceeding.\n'I will not' (said the Earl of Cornwall to his  sovereign)  'render  up\nmy   castles,  nor   depart  the  kingdom,  but   by  judgment of  my\npeers.' Of  this institution,  so wisely  calculated for  the preservation\nof liberty,  all our, historians have pronounced the eulogium.\" --\nDitto, p. 262-3.\n\nBlackstone says:\n\n\"The policy of our ancient constitution, as regulated and\nestablished by the great Alfred, was to bring justice home to\nevery man's door, by constituting as many courts of judicature\nas there are manors and towns in the kingdom; wherein injuries\nwere redressed in an easy and expeditious manner, by the\nsuffrage of neighbors and friends.  These little courts, however,\ncommunicated with others of a larger jurisdiction, and those\nwith others of a still greater power; ascending gradually from\nthe lowest to the supreme courts, which were respectively\nconstituted to correct the errors of the inferior ones, and to\ndetermine such causes as, by reason of their weight and\ndifficulty, demanded a more solemn discussion. The course\nof justice flowing in large streams from the king, as the\nfountain, to his superior courts of record; and being then\nsubdivided into smaller channels, till the whole and every part\nof the kingdom were plentifully watered and refreshed. An\ninstitution that seems highly agreeable to the dictates of\nnatural reason, as well as of more enlightened policy.\n\n\"These inferior courts, at least the name and form of them, still\ncntinue in our legal constitution; but as the superior courts of\nrecord have, in practice, obtained a concurrent original\njurisdiction, and as there is, besides, a power of removing\nplaints or actions thither from all the inferior jurisdictions;\nupon these accounts (among others) it has happened that these\npetty tribunals have fallen into decay, and almost into oblivion;\nwhether for the better or the worse may be matter of some\nspeculation, when we consider, on the one hand, the increase of\nexpense and delay, and, on the other, the more able and impartial\ndecisions that follow from this change of jurisdiction.\n\n\"The order I shall observe in discoursing on these several\ncourts, constituted for the redress of civil injuries, (for with\nthose of a jurisdiction merely criminal  I shall not at present\nconcern myself, [23]) will be by beginning with the lowest, and\nthose whose jurisdiction, though public and generally dispersed\nthrough the kingdom, is yet (with regard to each particular\ncourt) confined to very narrow limits; and so ascending gradually\nto those of the most extensive and transcendent power.\" -- 3\nBlackstone, 30 to 32.\n\n\"The court-baron is a court incident to every manor in the\nkingdom, to beholden by the steward within the said manor.  This\ncourt-baron is of two natures; the one is a customary court, of\nwhich we formerly spoke, appertaining entirely to the\ncopy-holders, in which their estates are transferred by surrender\nand admittance, and other matters transacted relative to their\ntenures only. The other, of which we now speak, is a court of\ncommon law, and it is a court of the barons, by which name the\nfreeholders were sometimes anciently called; for that it is held\nby the freeholders who owe suit and service to th manor, the\nsteward being rather the registrar than the judge.  These courts,\nthough in their nature distinct, are frequently confounded\ntogether. The court we are now considering, viz., the freeholders\ncourt, was composed of the lord's tenants, who were the pares\n(equals) of each other, and were bound by their feudal tenure to\nassist their lord in the dispensation of domestic justice. This\nwas formerly held every three weeks; and its most important\nbusiness is to determine, by writ of right, all controversies\nrelating to the right of lands within the manor. It may also hold\nplea of any personal actions, of debt, trespass in the case, or\nthe like, where the debt or damages do not amount to forty\nshillings; which is the same sum, or three marks, that bounded\nthe jurisdiction of the ancient Gothic courts in their lowest\ninstance, or fierding courts, so called because four were\ninstitute within every superior district or hundred.\"   8\nBlackstone, 38, 34.\n\n\"A hundred court is only a larger court-baron, being held for all\nthe inhabitants of a particular hundred, instead of a manor. The\nfree suitors are here also the judges, and the steward the\nregistrar, as in the case of a court-baron. It is likewise no\ncourt of record, resembling the former at all points, except that\nin point of territory it is of greater jurisdiction. This is said\nby Sir Edward Coke to have been derived out of the county court\nfor the ease of the people, that they might have justice done to\nthem at their own doors, without any charge or loss of time; but\nits institution was probably coeval with that of hundreds\nthemselves, which were formerly observed to have been\nintroduced, though not invented, by Alfred, being derived from\nthe polity of the ancient Germans. The centeni, we may remember,\nwere the principal inhabitants of a district composed of different\nvillages, oriinally in number a hundred, but afterward only called\nby that name, and who probably gave the same denomination\nto the district out of which they were chosen. Caesar speaks\npositively of the judicial power exercised in their hundred\ncourts and courts-baron. 'Princeps regiorum atque pagorum' (which\nwe may fairly construe the lords of hundreds and manors) 'inter\nsuos jus dicunt, controversias que minuunt.' (The chiefs of the\ncountry and the villages declare the law among them, and abate\ncontroversies.) And Tacitus, who had examined their constitution\nstill more attentively, informs us not only of the authority of\nthe lords, but that of the centeni, the hundreders, or jury, who\nwere taken out of the common freeholders, and had themselves a\nshare in the determination. ' Eliguntur in conciliis et\nprincipes, qui jura per pagos vicosque reddunt, centenii\nsingulis, ex plebe comites comcilium simul et auctoritas adsunt.\n(The princes are chosen in the assemblies, who administer the\nlaws throughout the towns and villages, and with each one are\nassociated an hundred companions, taken from the people, for\npurposes both of counsel and authority.) This hundred court was\ndenominated haereda in the Gothic constitution. But this court,\nas causes are equally liable to removal from hence as from the\ncommon court-baron, and by the same writs, and may also be\nreviewed by writ of false judgment, is therefore fallen into\nequal disuse with regard to the trial of actions.\" 8 Blackstone, 34,\n85.\n\n\"The county court is a court incident to the jurisdiction of the\nsheriff. It is not a court of record, but may hold pleas of debt,\nor damages, under the value of forty shillings; over some of\nwhich causes these inferior courts have, by the express words of\nthe statute of Gloucester, (6 Edward I., eh. 8,) a jurisdicton\ntotally exclusive of the king's superior courts. *  * The county\ncourt may also hold plea of many real actions, and of all\npersonal actions to any amount, by virtue of a special writ,\ncalled a justicies, which is a writ empowering the sheriff, for\nthe sake of despatch, to do the samee justice in his county court\nas might otherwise be had at Westminster. The freeholders of the\ncounty court are the real judges in this court, and the sheriff\nis the ministerial ofhcer. * * In modern times, as proceedings\nare removable from hence into the king's superior courts, by writ\nof pone or recordari, in the same manner as from hundred courts\nand courts-baron, and as the same writ of false judgment may be\nhad in nature of a writ of error, this has occasioned the same\ndisuse of bringing actions therein.\"   3 Blackstone, 36, 37.\n\n\"Upon the whole, we cannot but admire the wise economy and\nadmirable provision of our ancestors in settling the distribution\nof justice in a method so well calculated for cheapness,\nexpedition, and ease. By the constitution which they established,\nall trivial debts, and injuries of small consequence, were to be\nrecovered or redressed in every man's own county, hundred, or\nperhaps parish.\"   3 Blackstone, 59.\n\n[22] It would be wholly erroneous, I think, to infer from this\nstatement of Stuart, that either the \"priests, princes, earls, or\neorldormen\" exercised any authority over the jury in the trial of\ncauses, in the way of dictating the law to them. Henry's account\nof this matter doubtless gives a much more accurate\nrepresentation of the truth. He says that anciently\n\n[23] There was no distinction between the civil and criminal\ncourts, as to the rights or powers of juries.\n\n[24] This quaint and curious book; (Smith's Commonwealth\nof England) describes the minutiae of trials, giving in detail\nthe mode of impaneling the jury and then the conduct of the\n lawyers, witnesses, and court I give the following extracts,\ntending to show that the judges impose no law upon the juries,\nin either civil or criminal cases but only require them to\ndetermine the causes according to their consciences.\n\nIn civil causes he says:\n\n\"When it is thought that it is enough pleaded before them,\nand the witnesses have said what they can, one of the judges,\nwith a brief and pithy recapitulation, reciteth to the twelve\nin sum the arguments of the sergeants of either side, that\nwhich the witnesses have declared, and the chief points of the\nevidence showed in writing, and once again putteth them in\nmind of the issue, and sometime giveth it them in writing,\ndelivering to them the evidence which is showed on either part,\nif any be, (evidence here is called writings of contracts,\nauthentical after the manner of England, that is to say, written,\nsealed, and delivered,) and biddeth them go together.\"   p. 74.\n\nThis is the whole account given of the charge to the jury.\n\nIn criminal eases, after the witnesses have been heard, and\nthe prisoner has said what he pleases in his defence, the book\nproceeds:\n\n\"When the judge hath heard them say enough, he asketh if\nthey can say any more. If they say no, then he turneth his speech\nto the inquest. 'Good men, (saith he,) ye of the inquest, ye have\nheard what these men say against the prisoner. You have also\nheard what the prisoner can say for himself. Have an eye to\nyour oath, and to your duty, and do that which God shall put\nin your minds to the discharge of your consciences, and mark\nwell what is said.' \"  p. 92.\n\nThis is the whole account given of the charge in a criminal ease.\n\nThe following statement goes to confirm the same idea, that\njurors in England have formerly understood it to be their right and\nduty to judge only according to their consciences, and not to\nsubmit to any dictation from the court, either as to law or fact.\n\n\"If having pregnant evidence, nevertheless, the twelve do\nacquit the malefactor which they will do sometime, especially if\nthey perceive either one of the justices or of the judges, or some\nother man, to pursue too much and too maliciously the death of the\nprisoner, * * the prisoner escapeth; but the twelve (are) not only\nrebuked by the judges, but also threatened of punishment; and\nmany times commanded to appear in the Star-Chamber, or before the\nPrivy Council for the matter. But this threatening chanceth oftener\nthan the execution thereof; and the twelve answer with most\ngentle words, they did it according to their consciences, and\npray the judges to be good unto them, they did as they thought\nright, and as they accorded all, and so it passeth away for the\nmost part.\"   p. 100.\n\nThe account given of the trial of a peer of  the realm corroborates\nthe same point:\n\n\"If any duke, marquis, or any other of the degrees of a baron,\nor above, lord of the Parliament, be appeached of treason, or any\nother capital crime, he is judged by his peers and equals; that,\nis, the yeomanry doth not go upon him, but an inquest of the Lords\nof Parliament, and they give their voice not one for all, but each\nseverally as they do in Parliament being (beginning) at the\nyoungest lord. And for judge one lord sitteth, who is constable of\nEngland for that day. The judgment once given, he breaketh his\nstaff, and abdicateth his office. In the rest there is no difference\nfrom that above written,\" (that is, in the case of a freeman.) p. 98.\n\n[25] \"The present  form of the jurors' oath is  that they shall 'give a\ntrue verdict according to the evidence.' At what time this form was\nintroduced is uncertain; but for several centuries after the Conquest,\nthe jurors, both in civil and criminal cases,  were sworn merely to\nspeak  the truth. (Glanville, lib. 2, cap. 17; Bracton, lib. 3, cap. 22; lib. 4,\np. 287, 291; Britton, p. 135.) Hence their decision was accurately\ntermed veredictum, or verdict, that is, ' a thing truly said'; whereas\nthe phrase 'true verdict' in the modern oath is not an accurate\nexpression.\"   Political Dictionary, word Jury.\n\n[26] Of course, there can be no legal trial by jury, in either civil or\ncriminal cases, where the jury are sworn to try the cases \"according\nto law.\"\n\n[27] Coke, as late as 1588, admits that amercements must be fixed by the\npeers (8 Coke's Rep. 88, 2 Inst. 27); but he attempts, wholly without\nsuccess, as it seems to me, to show a difference between fines and\namercements. The statutes are very numerous, running through the\nthree or four hundred years immediately succeeding Magna Carta,\nin which fines, ransoms, and amercements are spoken of as if they\nwere the common punishments of offences, and as if they all meant the\nsame thing. If, however, any technical difference could be made\nout between them, there is clearly none in principle; and the word\namercement, as used in Magna Carta, must be taken in its most\ncomprehensive sense.\n\n[28] \"Common right\" was the common law. 1 Coke's\nInst. 142 a. 2 do. 55, 6.\n\n[29] The oath of the justices is in these words:\"Ye shall\nswear, that well and lawfully ye shall serve our lord the\nking and his people, in the office of justice, and that\nlawfully ye shall counsel the king in his business, and that\nye shall not counsel nor assent to anything which may\nturn him in damage or disherison in any manner, way, or\ncolor. And that ye shall not know the damage or\ndisherison of him, whereof ye shall not cause him to be\nwarned by yourself, or by other; and that ye shall do\nequal law and execution of right to all his subjects, rich\nand poor, without having regard to any person. And that\nye take not by yourself, or by other, privily nor apertly,\ngift nor reward of gold nor silver, nor of any other\nthing that may turn to your profit, unless it be meat or\ndrink, and that of small value, of any man that shall\nhave any plea or process hanging before you, as long\nas the same process shall be so hanging, nor after for\nthe same cause. And that ye take no fee, as long as ye\nshall be justice, nor robe of any man great or small, but\nof the king himself. And that ye give none advice or\ncounsel to no man great or small, in no case where the king\nis party. And in case that any, of what estate or condition\nthey be, come before you in your sessions with force\nand arms, or otherwise against the peace, or against the\nform of the statute thereof made, to disturb execution\nof the common law,\" [mark the term, \"common law,\")\n\"or to menace the people that they may not pursue the\nlaw, that ye shalt cause their bodies to be arrested and\nput in  prison; and in case they be such that ye cannot\narrest them, that ye certify the king of their names, and\nof their misprision, hastily, so that he may thereof\nordain a convenable remedy. And that ye by yourself,\nnor by other, privily nor apertly, maintain any plea or\nquarrel hanging in the king's court, or elsewhere in the\ncountry. And that ye deny no man common right by\nthe king's letters, nor none other man's, nor for none\nother cause, and in case any letters come to you\ncontrary to the law,'\" (that is, the \"common law\n\" before mentioned,) \"that ye do nothing by such\nletters, but certify the king thereof, and proceed to\nexecute the law,\" (the \"common law\" before mentioned,)\n\"notwithstanding the same letters. And that ye shall\ndo and procure the profit of the king and of his crown,\nwith all things where ye may reasonably do the\nsame.  And in case ye be from henceforth found in\ndefault in any of the points aforesaid, ye shall be at the\nking's will of body, lands, and goods, thereof to be\ndone as shall please him, as God you help and all\nsaints.\"   18 Edward III., st. 4. (1344.)\n\n[30] That the terms \"Law\" and \"Right,\" as used\nin this statute, mean the common law, is shown\nby the preamble, which declares the motive of\nthe statute to be that \"the Law of the Land,\n(the common law,) which we (the king) by our\noath are bound to maintain,\" may be the better\nkept, &.\n\n[31] The following is a copy of the original:\n\n\"Forma Juramenti Regis Anglicae in Coronacione sua:\n\n(Archiepiscopus Cantuariae, ad quo de jure et consuetudine\nEcclesiae Cantuariae, antiqua et approbata, pertinet\nReges Angliae inungere et coronare, die coronacionis\nRegis, anteque Rex coronetur, faciet Regi Interrogationes\nsubscriptas.)\n\nSi leges et consuetudines ab antiquis justis et Deo\ndevotis Regibus plebi Anglicano concessas, cum\nsacramenti confirmacione eidem plebi concedere\net servare (volueris:) Et praesertim leges et\nconsuetudines et libertates a glorioso Rege Edwardo\nclero populoque concessas ?\n\n(Et respondeat Rex,) Concedo et servare volo, et\nsacramento confirmare.\n\nServabis Ecclesiae Dei, Cleroque, et Populo, pacem\nex integro et concordiam in Deo secundum vires tuas ?\n\n(Et respondeat Rex,) Servabo.\n\nFacies fieri in omnibus Judieiis tuis equam et rectam\njustioiam, et discreeionem, in misericordia et veritate,\nsecundum vires  tuas?\n\n(Et respondeat Rex,) Faciam.\n\nConcedis justas, leges et consuetudines esse tenendas,\net promittis per te eas esse protegendas, et ad honorem\nDei corroborandas, quas vulgus elegit, secundum vires\ntuas ?\n\n(Et respondeat Rex,) Concedo et promitto.\"\n\n[32] It would appear, from the text, that the Charter of Liberties\nand the Charter of the Forest were sometimes called \"laws of the\nland.\"\n\n[33] As the ancient coronation oath, given in the text,\n has come down from the Saxontimes, the following\nremarks of Palgrave will be pertinent, in connection\nwith the oath, as illustrating the fact that, in those times,\nno special authority attached to the laws of the king:\n\n\"The Imperial Witenagemot was not a legislative\nassembly, in the strict sense of the term, for the whole\nAnglo-Saxon empire. Promulgating his edicts amidst\nhis peers and prelates, the king uses the language of\ncommand; but the theoretical prerogative was modified\nby usage, and the practice of the constitution required\nthat the law should be accepted by the legislatures\n(courts) of the several kingdoms. * * The 'Basileus'\nspeaks in the tone of prerogative: Edgar does not\nmerely recommend, he commands that the law shall be\nadopted by all the people, whether English,  Danes, or\nBritons, in every part of his empire. Let this statute be\nobserved, he continues, by Earl Oslac, and all the host\nwho dwell under his government, and let it be transmitted\nby writ to the ealdormen of the other subordinate states.\nAnd yet, in defiance of this positive iujunction, the\nlaws of Edgar were not accepted in Mercia until the reign\nof Canute the Dane. It might be said that the course\nso adopted may have been an exception to the general rule;\nbut in the scanty and imperfect annals of Anglo-Saxon\nlegislation, we shall be able to find so many examples\nof similar proceedings, that this mode of enactment\nmust be considered as dictated by the constitution of\nthe empire. Edward was the supreme lord of the\nNorthumbrians, but more than a century elapsed before\nthey obeyed his decrees.  The laws of the glorious\nAthelstane had no effect in Kent, (county,) the\ndependent appanage of his crown, until sanctioned\nby the Witan of the shire (county court). And the power of\nCanute himself, the 'King of all England,' does not\nseem to have compelled the Northumbrians to\nreceive his code, until the reign of the Confessor,\nwhen such acceptance became a part of the compact\nupon the accession of a new earl.\n\nLegislation constituted but a small portion  of the\nordinary business transacted by the Imperial\nWitenagemot. The wisdom of the assembly was\nshown in avoiding unnecessary change. Consisting\nprincipally of traditionary usages and ancestorial customs,\nthe law was upheld by opinion. The people considered\ntheir jurisprudence as a part of their  inheritance.\nTheir privileges and their duties were closely conjoined;\nmost frequently, the statutes themselves were only\naffirmances of ancient customs, or declaratory enactments.\n\nIn the Anglo-Saxon commonwealth, therefore, the\nlegislative functions of the Witenagemot were of far\nless importance than the other branches of its authority.\n* * The members of the Witenagemot were the ' Pares Curiae '\n(Peers of Court) of the kingdom. How far, on these occasions,\ntheir opinion or their equity controlled the power of the crown,\ncannot be ascertained. But the form of inserting their names\nin the 'Testing Clause' was retained under the\nAnglo-Norman reigns; and the sovereign, who submitted\nhis Charter to the judgment of the Proceres, professed to\nbe guided by the opinion which they gave. As the 'Pares'\nof the empire, the Witenagemot decided' the disputes\nbetween the great vassals of the crown. * * The jurisdiction\nexercised in the Parliament of Edward I., when the barony\nof a Lord-Marcher became the subject of litigation, is\nentirely analogous to the proceedings thus adopted by the great\ncouncil of Edward, the son of Alfred, the Anglo-Saxon king.\n\nIn this assembly, the king, the prelates, the dukes, the\nealdormen, and the optimates passed judgment upon all great\noffenders.* *\n\nThe sovereign could not compel the obedience of the different\nnations composing the Anglo-Saxon empire. Hence, it\nbecame more necessary for him to conciliate their\nopinions, if he solicited any service from a vassal prince or\na vassal state beyond the ordinary terms of the compact;\nstill more so, when he needed the support of a free burgh or\ncity. And we may view the assembly (the Witenagemot)\nas partaking of the character of a political congress, in\nwhich the liegemen of the crown, or the communities\nprotected by the ' Basileus,' (sovereign,) were asked or\npersuaded to relieve the exigences of the state, or to consider\nthose measures which might be required for the common weal.\nThe sovereign was compelled to parley with his dependents,\n\nIt may be doubted whether any one member of the empire had\npower to legislate for any other member. The Regulus of Cumbria\nwas unaffected by the vote of the Earl of East Angliae, if\nhe chose to stand out against it. These dignitaries\nconstituted a congress, in which the sovereign could\ntreat more conveniently and effectually with his vassals\nthan by separate negotiations. * * But the determinations\nof the Witan bound those only who were present, or who\nconcurred in the proposition; and a vassal denying his assent\nto the grant, might assert that the engagement which he\nhad contracted with his superior did not involve any\npecuniary subsidy, but only rendered him liable to perform\nservice in the field.\"   1 Palgrave's Rise and Progress of the\nEnglish Commonwealth, 637 to 642.\n\n\nCHAPTER IV. THE RIGHTS AND DUTIES OF JURIES IN\nCIVIL SUITS.\n\nThe evidence already given in the preceding chapters proves that\nthe rights and duties of jurors, in civil suits, were anciently\nthe same as in criminal ones; that the laws of the king were of\nno obligation upon the consciences of the jurors, any further\nthan the laws were seen by them to be just; that very few laws\nwere enacted applicable to civil suits; that when a new law was\nenacted, the nature of it could have been known to the jurors\nonly by report, and was very likely not to be known to them at\nall; that nearly all the law involved in civil suits was\nunwritten;  that there was usually  no one in attendance upon\njuries who could possibly enlighten them, unless it were\nsheriffs, stewards, and bailiffs, who were unquestionably too\nignorant and untrustworthy to instruct them authoritatively; that\nthe jurors must therefore necessarily have judged for themselves\nof the whole case; and that, as a general rule, they could judge\nof it by no law but the law of nature, or the. principles of\njustice as they existed in their own minds.\n\nThe ancient oath of jurors in civil suits, viz., that \"they would\nmake known the truth according to their consciences,\" implies\nthat the jurors were above the authority of all legislation. The\nmodern oath, in England, viz., that they \"will well and truly try\nthe issue between the parties, and a true verdict give, according\nto the evidence,\" implies the same thing. If the laws of the king\nhad been binding upon a jury, they would have been sworn to try\nthe cases according to law, or according to the laws.\n\nThe ancient writs, in civil suits, as given in Glanville, (within\nthe half century before Magna Carta,) to wit, \"Summon twelve free\nand legal men, (or sometimes twelve knights,) to be in court,\nprepared upon their oaths to declare whether A or B have the\ngreater right to the land in question,\" indicate that the jurors\njudged of the whole matter on their consciences only.\n\nThe language of Magna Carta, already discussed, establishes\nthe same point; for, although some of the words, such as\n\"outlawed,\" and \"exiled,\" would apply only to criminal cases,\nnearly the whole chapter applies as well to civil as to criminal\nsuits. For example, how could the payment of a debt ever be\nenforced against an unwilling debtor, if he could neither be\n\"arrested, imprisoned, nor deprived of his freehold,\" and if the\nking could neither \"proceed against him, nor send any one against\nhim, by force or arms\" ?  Yet Magna Carta as much forbids that\nany of these things shall be done against a debtor, as against a\ncriminal, except according to, or in execution of, \" a judgment\nof his peers, or the law of the land,\"   a provision which, it\nhas been shown, gave the jury the free and absolute right to give\nor withhold \"judgment\" according to their consciences,\nirrespective of all legislation.\n\nThe following provisions, in the Magna Carta of John, illustrate\nthe custom of referring the most important matters of a civil\nnature, even where the king was a party, to the determination of\nthe peers, or of twelve men, acting by no rules but their own\nconsciences. These examples at least show that there is nothing\nimprobable or unnatural in the idea that juries should try all\ncivil suits according to their own judgments, independently of\nall laws of the king.\n\nChap. 65. \"If we have disseized or dispossessed the Welsh of any\nlands, liberties, or other things, without the legal judgment of\ntheir peers, they shall be immediately restored to them. And if\nany dispute arises upon this head, the matter shall be determined\nin the Marches, [1] by the judgment of their peers,\" &c;.\n\nChap. 68. \" We shall treat with Alexander, king of Scots,\nconcerning the restoring of his sisters, and hostages, and rights\nand liberties, in the same form and manner as we shall do to the\nrest of our barons of England; unless by the engagements, which\nhis father William, late king of Scots, hath entered into with\nus, it ought to be otherwise; and this shall be left to the\ndetermination of his peers in our court.\"\n\nChap. 56. \"All evil customs concerning forests, warrens, and\nforesters, warreners, sheriffs, and their officers, rivers and\ntheir keepers, shall forthwith be inquired into in each county,\nby twelve knights of the same shire, chosen by the most\ncreditable persons in the same county, and upon oath; and within\nforty days after the said inquest, be utterly abolished, so as\nnever to be restored.\"\n\nThere is substantially the same reason why a jury ought to judge\nof the justice of laws, and hold all unjust laws invalid, in\ncivil suits, as in criminal ones. That reason is the necessity of\nguarding against the tyranny of the government. Nearly the same\noppressions can be practised in civil suits as in criminal ones.\nFor example, individuals may be deprived, of their liberty, and\nrobbed of their property, by judgments rendered in civil suits,\nas well as in criminal ones. If the laws of the king were\nimperative upon a jury in civil suits, the king might enact laws\ngiving one man's property to another, or confiscating it to the\nking himself, and authorizing civil suits to obtain possession of\nit. Thus a man might be robbed of his property at the arbitrary\npleasure of the king. In fact, all the property of the kingdom\nwould be placed, at the arbitrary disposal of the king, through\nthe judgments of juries in civil suits, if the laws of the king\nwere imperative upon a jury in such suits. [2]\n\nFurthemore, it would be absurd and inconsistent to make\na jury paramount to legislation in criminal suits, and\nsubordinate to it in civil suits; because an individual, by\nresisting the execution of a civil judgment, founded upon an\nunjust law, could give rise to a criminal suit, in which the jury\nwould be bound to hold the same law invalid. So that, if an\nunjust law were binding upon a jury in civil suits, a defendant,\nby resisting the execution of the judgment, could, in effect,\nconvert the civil action into a criminal one, in which the jury\nwould be paramount to the same legislation, to which, in the\ncivil suit, they were subordinate. In other words, in the\ncriminal suit, the jury would be obliged to justify the defendant\nin resisting a law, which, in the civil suit, they had said he\nwas bound to submit to.\n\nTo make this point plain to the most common mind   suppose a\nlaw be enacted that the property of A shall be given to B. B\nbrings a civil action to obtain possession of it. If the jury, in this\ncivil suit, are bound to hold the law obligatory, they render a\njudgment in favor of B, that he be put in possession of the\nproperty; thereby declaring that A is bound to submit to a law\ndepriving him of his property. But when the execution of that\njudgment comes to be attempted   that is, when the sheriff comes\nto take the property for the purpose of delivering it to B   A\nacting, as he has a natural right to do, in defence of his\nproperty, resists and kills the sheriff. He is thereupon indicted\nfor murder. On this trial his plea is, that in killing the\nsheriff, he was simply exercising his natural right of defending\nhis property against an unjust law. The jury, not being bound, in\na criminal case, by the authority of an unjust law, judge the act\non its merits, and acquit the defendant   thus declaring that he\nwas not bound to submit to the same law which the jury, in the\ncivil suit, had, by their judgment, declared that he was bound to\nsubmit to. Here is a contradiction between the two judgments. In\nthe civil suit, the law is declared to be obligatory upon A; in\nthe criminal suit, the same law is declared to be of no\nobligation.\n\nIt would be a solecism and absurdity in government to allow\nsuch consequences as these. Besides, it would be practically\nimpossible to maintain government on such principles; for no\ngovernment could enforce its civil judgments, unless it could\nsupport them by criminal ones, in case of resistance. A jury must\ntherefore be paramount to legislation in both civil and criminal\ncases, or in neither. If they are paramount in neither, they are\nno protection to liberty. If they are paramount in both, then all\nlegislation goes only for what it may chance to be worth in the\nestimation of a jury.\n\nAnother reason why Magna Carta makes the discretion and\nconsciences of juries paramount to all legislation in civilsuits, is,\nthat if legislation were binding upon a jury, the jurors  (by reason\nof their being unable to read, as jurors in those days were, and\nalso by reason of many of the statutes being unwritten, or at least\nnot so many copies written as that juries could be supplied with\nthem)   would have been necessitated at least in those courts in\nwhich the king's justices sat   to take the word of those justices\nas to what the laws of the king really were. In other words, they\nwould have been necessitated to take the law from the court, as\njurors do now.\n\nNow there were two reasons why, as we may rationally suppose,\nthe people did not wish juries to take their law from the king's\njudges. One was, that, at that day, the people probably had sense\nenough to see, (what we, at this day, have not sense enough to\nsee, although we have the evidence of it every day before our\neyes,) that those judges, being dependent upon the legislative\npower, (the king,) being appointed by it, paid by it, and\nremovable by it at pleasure, would be mere tools of that power,\nand would hold all its legislation obligatory, whether it were\njust or unjust. This was one reason, doubtless, why Magna Carta\nmade juries, in civil suits, paramount to all instructions of the\nking's judges. The reason was precisely the same as that for\nmaking them paramount to all instructions of judges in criminal\nsuits, viz., that the people did not choose to subject their\nrights of property, and all other rights involved in civil suits,\nto the operation of such laws as the king might please to enact.\nIt was seen that to allow the king's judges to dictate the law to\nthe jury would be equivalent to making the legislation of the\nking imperative upon the jury.\n\nAnother reason why the people did not wish juries, in civil\nsuits, to take their law from the king's judges, doubtless was,\nthat, knowing the dependence of the judges upon the king, and\nknowing that the king would, of course, tolerate no judges who\nwere not subservient to his will, they necessarily inferred; that\nthe king's judges would be as corrupt, in the administration of\njustice, as was the king himself, or as he wished them to be. And\nhow corrupt that was, may be inferred from the following\nhistorical facts.\n\nHume says:\n\n\"It appears that the ancient kings of England put themselves\nentirely upon the footing of the barbarous Eastern princes, whom\nno man must approach without a present, who sell all their good\noffices, and who intrude themselves into every business that they\nmay have a pretence for extorting money. Even justice was\navowedly bought and sold; the king's court itself, though the\nsupreme judicature of the kingdom, was open to none that brought\nnot presents to the king; the bribes given for expedition, delay,\nsuspension, and doubtless for the perversion of justice, were\nentered in the public registers of the royal revenue, and remain\nas monuments of the perpetual iniquity and tyranny of the times.\nThe barons of the exchequer, for instance, the first nobility of\nthe kingdom, were not ashamed to insert, as an article in their\nrecords, that the county of Norfolk paid a sum that they might be\nfairly dealt with; the borough of Yarmouth, that the king's\ncharters, which they have for their liberties, might not be\nviolated; Richard, son of Gilbert, for the king's helping him to\nrecover his debt from the Jews; * * Serio, son of Terlavaston,\nthat he might be permitted to make his defence, in case he were\naccused of a certain homicide; Walter de Burton, for free law, if\naccused of wounding another; Robert de Essart, for having an\ninquest to find whether Roger, the butcher, and Wace and\nHumphrey, accused him of robbery and theft out of envy and\nill-will, or not; William Buhurst, for having an inquest to find\nwhether he were accused of the death of one Godwin, out of\nill-will, or for just cause. I have selected these few instances\nfrom a great number of the like kind, which Madox had selected\nfrom a still greater number, preserved in the ancient rolls of\nthe exchequer.\n\nSometimes a party litigant offered the king a certain portion,\na half, a third, a fourth, payable out of the debts which he, as\nthe executor of justice, should assist in recovering. Theophania\nde Westland agreed to pay the half of two hundred and twelve\nmarks, that she might recover that sum against James de\nFughleston; Solomon, the Jew, engaged to pay one mark\nout of every seven that he should recover against Hugh de la\nHose; Nicholas Morrel promised to pay sixty pounds, that the Earl\nof Flanders might be distrained to pay him three hundred and\nforty-three pounds, which the earl had taken from him; and these\nsixty pounds were to be paid out of the first money that Nicholas\nshould recover from the earl.\"   Hume, Appendix 2.\n\n\"In the reign of Henry II,, the best and most just of these (the\nNorman) princes, * *Peter, of Blois, a judicious and even elegant\nwriter, of that age, gives a pathetic description of the venality\nof justice, and the oppressions of the poor, * * and he scruples\nnot to complain to the king himself of these abuses. We may judge\nwhat the case would be under the government of worse princes.\"\nHume, Appendix 2.\n\nCarte says:\n\n\"The crown exercised in those days an exorbitant and\ninconvenient power, ordering the justices of the king's court, in\nsuits about lands, to turn out, put, and keep in possession,\nwhich of the litigants they pleased; to send contradictory\norders; and take large sums of money from each; to respite\nproceedings; to direct sentences; and the judges, acting by their\ncommission, conceived themselves bound to observe such orders,\nto the great delay, interruption, and preventing of justice; at\nleast, this was John's practice,\"   Carte's History of England,\nvol. 1, p. 832.\n\nHallam says:\n\n\"But of all the abuses that deformed the Anglo-Saxon government,\nnone was so flagitious as the sale of judicial redress, The king,\nwe are often told, is the fountain of justice; but in those ages\nit was one which gold alone could unseal. Men fined (paid fines)\nto have right done them; to sue in a certain court; to implead a\ncertain person; to have restitution of land which they had\nrecovered at law. From the sale of that justice which every\ncitizen has a right to demand, it was an easy transition to\nwithhold or deny it. Fines were received for the king's help\nagainst the adverse suitor; that is, for perversion of justice,\nor for delay. Sometimes they were paid by opposite parties, and,\nof course, for opposite ends.\"   2 Middle Ages, 438.\n\nIn allusion to the provision of Magna Carta on this subject,\nHallam says:\n\n\"A law which enacts that justice shall neither be sold, denied,\nnor delayed, stamps with infamy that government under which it\nhad become necessary.\"   2 Middle Ages, 451.\n\nLingard, speaking of the times of Henry II., (say 1184,) says:\n\n\"It was universally understood that money possessed greater\ninfluence than justice in the royal courts, and instances are on\nrecord, in which one party has made the king a present to\naccelerate, and the other by a more valuable offer has succeeded\nin retarding a decision. * * But besides the fines paid to the\nsovereigns, the judges often exacted presents for themselves, and\nloud complaints existed against their venality and injustice.\"\n8 Lingard, 231.\n\nIn the narrative of \"The costs and charges which I, Richard de\nAnesty, bestowed in recovering the land of William, my uncle,\"\n(some fifty years before Magna Carta,) are the following items:\n\n\"To Ralph, the king's physician, I gave thirty-six marks and one\nhalf; to the king an hundred marks; and to the queen one mark of\ngold.\" The result is thus stated. \"At last, thanks to our lord\nthe king, and by judgment of his court, my uncle's land was\nadjudged to me.\"   2 Palgrave's Rise and Progress of the English\nCommonwealth, p. 9 and 24.\n\nPalgrave also says:\n\n\"The precious ore was cast into the scales of justice, even when\nheld by the most conscientious of our Anglo-Saxon kings. A single\ncase will exemplify the practices which prevailed. Alfric, the\nheir of 'Aylwin, the black,' seeks to set aside the death-bed\nbequest, by which his kinsman bestowed four rich and fertile\nmanors upon St. Benedict. Alfric, the claimant, was supported by\nextensive and powerful connexions; and Abbot Alfwine, the\ndefendant, was well aware that there would be danger in the\ndiscussion of the dispute in public, or before the Folkmoot,\n(people's meeting, or county court); or, in other words, that the\nThanes of the shire would do their best to give a judgment in\nfavor of their compeer. The plea being removed into the Royal\nCourt, the abbot acted with that prudence which so often calls\nforth the praises of the monastic scribe. He gladly emptied\ntwenty marks of gold into the sleeve of the Confessor, (Edward,)\nand five marks of gold presented to Edith, the Fair, encouraged\nher to aid the bishop, and to exercise her gentle influence in\nhis favor. Alfric, with equal wisdom, withdrew from prosecuting\nthe hopeless cause, in which his opponent might possess an\nadvocate in the royal judge, and a friend in the king's consort.\nBoth parties. therefore, found it desirable to come to an\nagreement.\"   1 Palgrave's Rise and Progress, &c;., p. 650.\n\nBut Magna Carta has another provision for the trial of civil\nsuits, that obviously had its origin in the corruption of the\nking's judges. The provision is, that four knights, to be chosen\nin every county, by the people of the county, shall sit with the\nking's judges, in the Common Pleas, in jury trials, (assizes,) on\nthe trial of three certain kinds of suits, that were among the\nmost important that were tried at all. The reason for this\nprovision undoubtedly was, that the corruption and subserviency\nof the king's judges were so well known, that the people would\nnot even trust them to sit alone in a jury trial of any\nconsiderable importance. The provision is this:\n\nChap. 22, (of John's Charter.) \"Common Pleas shall not follow our\ncourt, but shall be holden in some certain place. Trials upon the\nwrit of novel disseisin, and of Mort d'Ancester, and of Darrein\nPresentment, shall be taken but in their proper counties, and\nafter this manner: We, or, if we should be out of our realm, our\nchief justiciary, shall send two jnsticiaries through every\ncounty four times a year; [3] who, with four knights chosen out\nof every shire, by the people, shall hold the assizes (juries) in\nthe county, on the day and at the place appointed.\"\n\nIt would be very unreasonable to suppose that the king's judges\nwere allowed to dictate the law to the juries, when the people\nwould not even suffer them to sit alone in jury trials, but\nthemselves chose four men to sit with them, to keep them honest.\n[4]\n\nThis practice of sending the king's judges into the counties\nto preside at jury trials, was introduced by the Norman kings\nUnder the Saxons it was not so. No officer of the king was\nallowed to preside at a jury trial; but only magistrates chosen\nby the people.[5]\n\nBut the following chapter of John's charter, which immediately\nsucceeds the one just quoted, and refers to the same suits,\naffords very strong, not to say conclusive, proof, that juries\njudged of the law in civil suits   that is, made the law, so far\nas their deciding according to their own notions of justice could\nmake the law.\n\nChap. 23. \"And if, on the county day, the aforesaid assizes\ncannot be taken, so many knights and freeholders shall remain, of\nthose who shall have been present on said day, as that the\njudgments may be rendered by them, whether the business be more\nor less.\"\n\nThe meaning of this chapter is, that so many of the civil\nsuits, as could not be tried on the day when the king's justices\nwere present, should be tried afterwards, by the four knights\nbefore mentioned, and the freeholders, that is, the jury. It must\nbe admitted, of course, that the juries, in these cases, judged\nthe matters of law, as well as fact, unless it be presumed that\nthe knights dictated the law to the jury na thing of which there\nis no evidence at all.\n\nAs a final proof on this point, there is a statute enacted\nseventy years after Magna Carta, which, although it is contrary\nto the common law, and therefore void, is nevertheless good\nevidence, inasmuch as it contains an acknowledgment, on the part\nof the king himself, that juries had a right to judge of the\nwhole matter, law and fact, in civil suits. The provision is\nthis:\n\n\"It is ordained, that the justices assigned to take the assizes,\nshall not compel the jurors to say precisely whether it be\ndisseisin, or not, so that they do show the truth of the deed,\nand seek aid of the justices. But if they will, of their own\naccord, say that it is disseisin, or not, their verdict shall be\nadmitted at their own peril.\"   13 Edward I., st. 1, ch. 3, sec.\n2. (1285.)\n\nThe question of \"disseisin, or not,\" was a question of law, as\nwell as fact. This statute, therefore, admits that the law, as\nwell as the fact, was in the hands of the jury. The statute is\nnevertheless void, because the king had no authority to give\njurors a dispensation from the obligation imposed upon them by\ntheir oaths and the \"law of the land,\" that they should \"make\nknown the truth according their (own) consciences.\" This they\nwere bound to do, and there was no power in the king to absolve\nthem from the duty. And the attempt of the king thus to absolve\nthem, and authorize them to throw the case into the hands of the\njudges for decision, was simply an illegal and unconstitutional\nattempt to overturn the \"law of the land,\" which he was sworn to\nmaintain, and gather power into his own hands, through his\njudges. He had just as much constitutional power to enact that\nthe jurors should not be compelled to declare the facts, but that\nthey might leave them to be determined by the king's judges, as\nhe had to enact that they should not be compelled to declare the\nlaw, but might leave it to be decided by the king's judges. 122\nIt was as much the legal duty of the jury to decide the law as to\ndecide the fact; and no law of the king could affect their\nobligation to do either. And this statute is only one example of\nthe numberless contrivances and usurpations which have been\nresorted to, for the purpose of destroying the original and\ngenuine trial by jury.\n\n[1] Marches, the limits, or boundaries, between England and\nWales.\n\n[2] That the kings would have had no scruples to enact laws for\nthe special purpose of plundering the people, by means of the\njudgments of juries, if they could have got juries to acknowledge\nthe authority of their laws, is evident from the audacity with\nwhich they plundered them, without any judgments of juries to\nauthorize them.\n\nIt is not necessary to occupy space here to give details as to\nthese robberies; but only some evidence of the general fact.\n\nHallam says, that \"For the first three reigns (of the Norman\nkings) * * the intolerable exactions of tribute, the rapine of\npurveyance, the iniquity of royal courts, are continually in the\nmouths of the historians. ' God sees the wretched people,' says\nthe Saxon Chronicler, 'most unjustly oppressed; first they are\ndespoiled of their possessions, and then butchered.' This was a\ngrievous year (1124). Whoever had any property, lost it by heavy\ntaxes and unjust decrees.\"   2 Middle Ages, 435-6.\n\n\"In the succeeding reign of John, all the rapacious exactions\nusual to these Norman kings were not only redoubled, but mingled\nwith outrages of tyranny still more intolerable.\n\n\"In 1207 John took a seventh of the movables of lay and spiritual\npersons, all murmuring, but none daring to speak against it.\"\nDitto, 446.\n\nIn Hume's account of the extortions of those times, the following\nparagraph occurs:\n\n\"But the most barefaced acts of tyranny and oppression were\npractised against the Jews, who were entirely out of the\nprotection of the law, and were abandoned to the immeasurable\nrapacity of the king and his ministers. Besides many other\nindignities, to which they were continually exposed, it appears\nthat they were once all thrown into prison, and the sum of 66,000\nmarks exacted for their liberty. At another time, Isaac, the Jew,\npaid alone 5100 marks\", Brun, 3000 marks; Jurnet, 2000; Bennet,\n500. At another, Licorica, widow of David, the Jew of Oxford, was\nrequired to pay 6000 marks.\"   Hume's Hist Eng., Appendix 2.\n\nFurther accounts of the extortions and oppressions of the kings\nmay be found in Hume's History, Appendix 2, and in Hallam's\nMiddle Ages, vol. 2, p. 435 to 446.\n\nBy Magna Carta John bound himself to make restitution for some\nof the spoliations he had committed upon individuals \"without the\nlegal judgment of their peers.\"   See Magna Carta of John, ch.\n60, 61, 65 and 66.\n\nOne of the great charges, on account of which the nation rose\nagainst John, was, that he plundered individuals of their\nproperty, \"without legal judgment of their peers.\" Now it was\nevidently very weak and short sighted in John to expose himself\nto such charges, if his laws were really obligatory upon the\npeers; because, in that case, he could have enacted any laws that\nwere necessary for his purpose, and then, by civil suits, have\nbrought the cases before juries for their \"judgment,\" and thus\nhave accomplished all his robberies in a perfectly legal manner.\n\nThere would evidently have been no sense in these complaints,\nthat he deprived men of their property \"without legal judgment of\ntheir peers,\" if his laws had been binding upon the peers;\nbecause he could then have made the same spoliations as well with\nthe judgment of the peers as without it. Taking the judgment of\nthe peers in the matter, would have been only a ridiculous and\nuseless formality, if they were to exercise no discretion or\nconscience of their own, independently of the laws of the king.\n\nIt may here be mentioned, in passing, that the same would be true\nin criminal mature, if the king's Laws were obligatory upon\njuries.\n\nAs an illustration of what tyranny the kings would sometimes\npractise, Hume says:\n\n\"It appears from the Great Charter itself, that not only John, a\ntyrannical prince, and Richard, a violent one, but their father\nHenry, under whose reign the prevalence of gross abuses is the\nleast to be suspected, were accustomed, from their sole\nauthority, without process of law, to imprison, banish, and\nattaint the freemen of their kingdom.\"   Hume, Appendix 2.\n\nThe provision, also, in the 64th chapter of Magna Carta, that \"\nall unjust and illegal fines, and all amercements, imposed\nunjustly, and contrary to the Law of the Land, shall be entirely\nforgiven,\" &c;.; and the provision, in chapter 61, that the king\n\"will cause full justice to be administered\" in regard to \"all\nthose things, of which any person has, without legal judgment of\nhis peers, been dispossessed or deprived, either by King Henry,\nour father., or our brother, King Richard,\" indicate the\ntyrannical practices that prevailed.\n\nWe are told also that John himself \"had dispossessed several\ngreat men without any judgment of their peers, condemned others\nto cruel deaths, * * insomuch that his tyrannical will stood\ninstead of a law.\"   Echard's History of England, 106.\nNow all these things were very unnecessary and foolish, if his\nlaws were binding upon juries; because, in that ease, he could\nhave procured the conviction of these men in a legal manner, and\nthus have saved the necessity of such usurpation. In short, if\nthe laws of the king had been binding upon juries, there is no\nrobbery, vengeance, or oppression, which he could not have\naccomplished through the judgments of juries. This consideration\nis sufficient, of itself, to prove that the laws of the king were\nof no authority over a jury, in either civil or criminal cases,\nunless the juries regarded the laws as just in themselves.\n\n[3] By the Magna Carta of Henry III., this is changed to once a\nyear.\n\n[4] From the provision of Magna Carta, cited in the text, it must\nbe inferred that there can be no legal trial by jury, in civil\neases, if only the king's justices preside; that, to make the\ntrial legal, there must be other persons, chosen by the people,\nto sit with them; the object being to prevent the jury's being\ndeceived by the justices. I think we must also infer that the\nking's justices could sit only in the three actions specially\nmentioned. We cannot go beyond the letter of Magria Carta, in\nmaking innovations upon the common law, which required all\npresiding officers in jury trials to be elected by the people.\n\n[5] [\"The earls, sheriffs, and head-boroughs were annually\nelected in the full folcmote, (people's meeting).\" Introduction\nto Gilbert's History of the Common Pleas, p. 2, note.\n\n\"It was the especial province of the earldomen or earl to attend\nthe shyre-meeting, (the county court,) twice a year, and there\nofficiate as the county judge in expounding the secular laws, as\nappears by the fifth of Edgar's laws.\"   Same, p. 2, note.\n\n\"Every ward had its proper alderman, who was chosen, and not\nimposed by the prince.\"   Same, p. 4, text.\n\n\"As the aldermen, or earls, were always chosen\" (by the people)\n\"from among the greatest thanes, who in those times were\ngenerally more addicted to arms than to letters, they were but\nill-qualified for the administration of justice, and performing\nthe civil duties of their office.\"   3 Henry's History of Great\nBritain, 343.\n\n\"But none of these thanes were annually elected in the full\nfolcmote, (people's meeting,) as the earls, sheriffs, and\nhead-boroughs were; nor did King Alfred (as this author suggests)\ndeprive the people of the election of those last mentioned\nmagistrates and nobles, much less did he appoint them himself.\"\nIntrod. to Gilbert's Hist. Com. Pleas, p. 2, note.\n\n\"The sheriff was usually not appointed by the lord, but elected\nby the freeholders of the district.\"   Political Dictionary, word\nSheriff.\n\n\"Among the most remarkable of the Saxon laws we may reckon\n* * the election of their magistrates by the people, originally even\nthat of their kings, till dear-bought  experience evinced the\nconvenience and necessity of establishing an hereditary\nsuccession to the crown. But that (the election) of all\nsubordinate magistrates, their military officers or heretochs,\ntheir sheriffs, their conservators of the peace, their coroners,\ntheir portreeves, (since changed into mayors and bailiffs,) and\neven their tithing-men and borsholders at the last, continued,\nsome, till the Norman conquest, others for two centuries after,\nand some remain to this day.\"   4 Blackstone, 418.\n\n\"The election of sheriffs was left to the people, according to\nancient usage.\"   St. West. 1, c. 27.   Crabbe's History of\nEnglish Law, 181.\n\n\n\nCHAPTER V. OBJECTIONS ANSWERED\n\nThe following objections will be made to the doctrines and the\nevidence presented in the preceding chapters.\n\n1. That it is a maxim of the law, that the judges respond to the\nquestion of law, and juries only to the question of fact.\nThe answer to this objection is, that, since Magna Carta, judges\nhave had more than six centuries in which to invent and\npromulgate pretended maxims to suit themselves; and this is one\nof them. Instead of expressing the law, it expresses nothing but the\nambitious and lawless will of the judges themselves, and of those\nwhose instruments they are.[1]\n\n2. It will be asked, Of what use are the justices, if the jurors\njudge both of law and fact?\n\nThe answer is, that they are of use, 1. To assist and enlighten\nthe jurors, if they can, by their advice and information; such\nadvice and information to be received only for what they may\nchance to be worth in the estimation of the jurors.  2. To do\nanything that may be necessary in regard, to granting appeals and\nnew trials.\n\n3. It is said that it would be absurd that twelve ignorant men\nshould have power to judge of the law, while justices learned in\nthe law should be compelledto sit by and see the law decided\nerroneously.\n\nOne answer to this objection is, that the powers of juries are not\ngranted to them on the supposition that they know the law better\nthan the justices; but on the ground that the justices are\nuntrustworthy, that they are exposed to bribes, are themselves\nfond of power and authority, and are also the dependent and\nsubservient creatures of the legislature; and that to allow them\nto dictate the law, would not only expose the rights of parties to\nbe sold for money, but would be equivalent to surrendering all the\nproperty, liberty, and rights of the people, unreservedly into the\nhands of arbitrary power, (the legislature,) to be disposed of at\nits pleasure. The powers of juries, therefore, not only place a\ncurb upon the powers of legislators and judges, but imply also an\nimputation upon their integrity and trustworthiness: and these are\nthe reasons why legislators and judges have formerly entertained\nthe intensest hatred of juries, and, so fast as they could do it\nwithout alarming the people for their liberties, have, by\nindirection, denied, undermined, and practically destroyed their\npower. And it is only since all the real power of juries has been\ndestroyed, and they have become mere tools in the hands of\nlegislators and judges, that they have become favorites with them.\n\nLegislators and judges are necessarily exposed to all the\ntemptations of money, fame, and power, to induce them to\ndisregard justice between parties, and sell the rights, and violate the\nliberties of the people. Jurors, on the other hand, are exposed to\nnone of these temptations. They are not liable to bribery, for\nthey are unknown to the parties until they come into the jury-box.\nThey can rarely gain either fame, power, or money, by giving\nerroneous decisions. Their offices are temporary, and they know\nthat when they shall have executed them, they must return to the\npeople, to hold all their own rights in life subject to the\nliability of such judgments, by their successors, as they\nthemselves have given an example for. The laws of human nature\ndo not permit the supposition that twelve men, taken by lot from the\nmass of the people, and acting under such circumstances, will all\nprove dishonest. It is a supposable case that they may not be\nsufficiently enlightened to know and do their whole duty, in all\ncases whatsoever; but that they should all prove dishonest, is not\nwithin the range of probability. A jury, therefore, insures to us\nwhat no other court does   that first and indispensable requisite\nin a judicial tribunal, integrity.\n\n4. It is alleged that if juries are allowed to judge of the law,\nthey decide the law absolutely; that their decision must\nnecessarily stand, be it right or wrong; and that this power of\nabsolute decision would be dangerous in their hands, by reason of\ntheir ignorance of the law.\n\nOne answer is, that this power, which juries have of judging of\nthe law, is not a power of absolute decision in all cases.  For\nexample, it is a power to declare imperatively that a man's\nproperty, liberty, or life, shall not be taken from him; but it is\nnot a power to declare imperatively that they shall be taken from\nhim.\n\nMagna Carta does not provide that the judgments of the peers shall\nbe executed; but only that no other than their judgments shall\never be executed, so far as to take a party's goods, rights, or\nperson, thereon.\n\nA judgment of the peers may be reviewed, and invalidated, and a\nnew trial granted. So that practically a jury has no absolute\npower to take a party's goods, rights, or person. They have only\nan absolute veto upon their being taken by the government. The\ngovernment is not bound to do everything that a jury may adjudge.\nIt is only prohibited from doing anything   (that is, from taking\na party's goods, rights, or person)   unless a jury have first\nadjudged it to be done.\n\nBut it will, perhaps, be said, that if an erroneous judgment of\none jury should be reaffirmed by another, on a new trial, it must\nthen be executed. But Magna Carta does not command even this\nalthough it might, perhaps, have been reasonably safe for it to\nhave done so   for if two juries unanimously affirm the same\nthing, after all the light and aid that judges and lawyers can\nafford them, that fact probably furnishes as strong a presumption\nin favor of the correctness of their opinion, as can ordinarily be\nobtained in favor of a judgment, by any measures of a practical\ncharacter for the administration of justice. Still, there is\nnothing in Magna Carta that compels the execution of even a\nsecond judgment of a jury. The only injunction of Magna Carta\nupon the government, as to what it shall do, on this point, is that it\nshall \"do justice and right,\" without sale, denial, or delay. But\nthis leaves the government all power of determining what is\njustice and right, except that it shall not consider anything as\njustice and right   so far as to carry it into execution against\nthe goods, rights, or person of a party   unless it be something\nwhich a jury have sanctioned.\n\nIf the government had no alternative but to execute all judgments\nof a jury indiscriminately, the power of juries would\nunquestionably be dangerous; for there is no doubt that they may\nsometimes give hasty and erroneous judgments. But when it is\nconsidered that their judgments can be reviewed, and new trials\ngranted, this danger is, for all practical purposes, obviated.\n\nIf it be said that juries may successively give erroneous\njudgments, and that new trials cannot be granted indefinitely, the\nanswer is, that so far as Magna Carta is concerned, there is\nnothing to prevent the granting of new trials indefinitely, if the\njudgments of juries are contrary to \"justice and right.\" So that\nMagna Carta does not require any judgment whatever to be\nexecuted so far as to take a party's goods, rights, or person, thereon\nunless it be concurred in by both court and jury.\n\nNevertheless, we may, for the sake of the argument, suppose the\nexistence of a practical, if not legal, necessity, for executing\nsome judgment or other, in cases where juries persist in\ndisagreeing with the courts. In such cases, the principle of Magna\nCarta unquestionably is, that the uniform judgments of\nsuccessivejuries shall prevail over the opinion of the court. And\nthe reason of this principle is obvious, viz., that it is the will of the\ncountry, and not the will of the court, or the government, that\nmust determine what laws shall be established and enforced; that\nthe concurrent judgments of successive juries, given in opposition\nto all the reasoning which judges and lawyers can offer to the\ncontrary, must necessarily be presumed to be a truer exposition of\nthe will of the country, than are the opinions of the judges.\n\nBut it may be said that, unless jurors submit to the control of\nthe court, in matters of law, they may disagree amongthemselves,\nand never come to any judgment; and thus justice fail to be done.\n\nSuch a case is perhaps possible; but, if possible, it can occur\nbut rarely; because, although one jury may disagree, a succession\nof juries are not likely to disagree   that is, on matters of\nnatural law, or abstract justice. [2] If such a thing should\noccur, it would almost certainly be owing to the attempt of the\ncourt to mislead them. It is hardly possible that any other cause\nshould be adequate to produce such an effect; because justice\ncomes very near to being a self-evident principle. The mind\nperceives it almost intuitively. If, in addition to this, the\ncourt be uniformly on the side of justice, it is not a reasonable\nsupposition that a succession of juries should disagree about it.\nIf, therefore, a succession of juries do disagree on the law of\nany case, the presumption is, not that justice fails of being\ndone, but that injustice is prevented   that injustice, which\nwould be done, if the opinion of the court were suffered to\ncontrol the jury.\n\nFor the sake of the argument, however, it may be admitted to be\npossible that justice should sometimes fail of being done through\nthe disagreements of jurors, notwithstanding all the light which\njudges and lawyers can throw upon the question in issue. If it be\nasked what provision the trial by jury makes for such cases, the\nanswer is, it makes none; and justice must fail of being done,\nfrom the want of its being made sufficiently intelligible.\n\nUnder the trial by jury, justice can never be done   that is, by a\njudgment that shall take a party's goods, rights, or person\nuntil that justice can be made intelligible or perceptible to the\nminds of all the jurors; or, at least, until it obtain the\nvoluntary assent of all   an assent, which ought not to be given\nuntil the justice itself shall have become perceptible to all.\n\nThe principles of the trial by jury, then, are these:\n\n1. That, in criminal cases, the accused is presumed innocent.\n\n2. That, in civil cases, possession is presumptive proof of\nproperty; or, in other words, every man is presumed to be the\nrightful proprietor of whatever he has in his possession.\n\n3. That these presumptions shall be overcome, in a court of\njustice, only by evidence, the sufficiency of which, and by law,\nthe justice of which, are satisfactory to the under- standing and\nconsciences of all the jurors.\n\nThese are the bases on which the trial by jury places the\nproperty, liberty, and rights of every individual.\n\nBut some one will say, if these are the principles of the trial by\njury, then it is plain that justice must often fail to be done.\nAdmitting, for the sake of the argument, that this may be true,\nthe compensation for it is, that positive injustice will also\noften fail to be done; whereas otherwise it would be done\nfrequently. The very precautions used to prevent injustice being\ndone, may often have the effect to prevent justice being done. Bu\nare we, therefore, to take no precautions against injustice? By no\nmeans, all will agree. The question then arises   Does the trial\nby jury, as here explained, involve such extreme and unnecessary\nprecautions against injustice, as to interpose unnecessary\nobstacles to the doing of justice? Men of different minds may very\nlikely answer this question differently, according as they have\nmore or less confidence in the wisdom and justice of legislators,\nthe integrity and independence of judges, and the intelligence of\njurors. This much, however, may be said in favor of these\nprecautions, viz., that the history of the past, as well as our\nconstant present experience, prove how much injustice may, and\ncertainly will, be done, systematically and continually, for the\nwant of these precautions   that is, while the law is authoritatively\nmade and expounded by legislators and judges. On the other hand,\nwe have no such evidence of how much justice may fail to be done,\nby reason of these precautions   that is, by reason of the law being\nleft to the judgments and consciences of jurors. We can determine\nthe former point   that is, how much positive injustice is done\nunder the first of these two systems because the system is in full\noperation; but we cannot determine how much justice would\nfail to be done under the latter system, because we have, in\nmodern times, had no experience of the use of the precautions\nthemselves. In ancient times, when these precautions were\nnominally in force, such was the tyranny of kings, and such the\npoverty, ignorance, and the inability of concert and resistance,\non the part of the people, that the system had no full or fair\noperation. It, nevertheless, under all these disadvantages,\nimpressed itself upon the understandings, and imbedded itself\nin the hearts, of the people, so as no other system of civil liberty\nhas ever done.\n\nBut this view of the two systems compares only the injustice done,\nand the justice omitted to be done, in the individual cases adjudged,\nwithout looking beyond them. And some persons might, on\nfirst thought, argue that, if justice failed of being done under\nthe one system, oftener than positive injustice were done under\nthe other, the balance was in favor of the latter system. But such\na weighing of the two systems against each other gives no true\nidea of their comparative merits or demerits; for, possibly, in\nthis view alone, the balance would not be very great in favor of\neither. To compare, or rather to contrast, the two, we must\nconsider that, under the jury system, the failures to do justice\nwould be only rare and exceptional cases; and would be owing\neither to the intrinsic difficulty of the questions, or to the\nfact that the parties had. transacted their business in a manner\nunintelligible to the jury, and the effects would be confined to\nthe individual or individuals interested in the particular suits.\nNo permanent law would be established thereby destructive of the\nrights of the people in other like cases. And the people at large\nwould continue to enjoy all their natural rights as before. But\nunder the other system, whenever an unjust law is enacted by the\nlegislature, and the judge imposes it upon the jury as\nauthoritative, and they give a judgment in accordance therewith,\nthe authority of the law is thereby established, and the whole\npeople are thus brought under the yoke of that law; because they\nthen understand that the law will be enforced against them in\nfuture, if they presume to exercise their rights, or refuse to\ncomply with the exactions of the law. In this manner all unjust\nlaws are established, and made operative against the rights of the\npeople.\n\nThe difference, then, between the two systems is this: Under the\none system, a jury, at distant intervals, would (not enforce any\npositive injustice, but only) fail of enforcing justice, in a dark\nand difficult case, or in consequence of the parties not having\ntransacted their business in a manner intelligible to a jury; and\nthe plaintiff would thus fail of obtaining what was rightfully due\nhim. And there the matter would end, for evil, though not for\ngood; for thenceforth parties, warned, of the danger of losing\ntheir rights, would be careful to transact their business in a\nmore clear and intelligible manner. Under the other system   the\nsystem of legislative and judicial authority   positive injustice\nis not only done in every suit arising under unjust laws,  that\nis, men's property, liberty, or lives are not only unjustly taken\non those particular judgments,  but the rights of the whole people\nare struck down by the authority of the laws thus enforced, and a\nwide-sweeping tyranny at once put in operation.\n\nBut there is another ample and conclusive answer to the argument\nthat justice would often fail to be done, if jurors were allowed\nto be governed by their own consciences, instead of the direction\nof the justices, in matters of law. That answer is this:\n\nLegitimate government can be formed only by the voluntary\nassociation of all who contribute to its support. As a voluntary\nassociation, it can have for its objects only those things in\nwhich the members of the association are all agreed. If,\ntherefore, there be any justice, in regard to which all the\nparties to the government are not agreed, the objects of the\nassociation do not extend to it. [3]\n\nIf any of the members wish more than this,  if they claim to have\nacquired a more extended knowledge of justice than is common to\nall, and wish to have their pretended discoveries carried into\neffect, in reference to themselves,   they must either form a\nseparate association for that purpose, or be content to wait until\nthey can make their views intelligible to the people at large.\nThey cannot claim or expect that the whole people shall practise\nthe folly of taking on trust their pretended superior knowledge,\nand of committing blindly into their hands all their own\ninterests, liberties, and rights, to be disposed of on principles,\nthe justness of which the people themselves cannot comprehend.\n\nA government of the whole, therefore, must necessarily confine\nitself to the administration of such principles of law as all the\npeople, who contribute to the support of the government, can\ncomprehend and see the justice of. And it can be confined within\nthose limits only by allowing the jurors, who represent all the\nparties to the compact, to judge of the law, and the justice of\nthe law, in all cases whatsoever. And if any justice be left\nundone, under these circumstances, it is a justice for which the\nnature of the association does not provide, which the association\ndoes not undertake to do, and which, as an association, it is\nunder no obligation to do.\n\nThe people at large, the unlearned and common people, have\ncertainly an indisputable right to associate for the establishment\nand maintenance of such a government as they themselves see the\njustice of, and feel the need of, for the promotion of their own\ninterests, and the safety of their own rights, without at the same\ntime surrendering all their property, liberty, and rights into the\nhands of men, who, under the pretence of a superior and\nincomprehensible knowledge of justice, may dispose of such\nproperty, liberties, and rights, in a manner to suit their own\nselfish and dishonest purposes.\n\nIf a government were to be established and supported solely by\nthat portion of the people who lay claim to superior knowledge,\nthere would be some consistency in their saying that the common\npeople should not be received as jurors, with power to judge of\nthe justice of the laws. But so long as the whole people (or all\nthe male adults) are presumed to be voluntary parties to the\ngovernment, and voluntary contributors to it support, there is no\nconsistency in refusing to any one of them more than to another\nthe right to sit as juror, with full power to decide for himself\nwhether any law that is proposed to be enforced in any particular\ncase, be within the objects of the association.\n\nThe conclusion, therefore, is, that, in a government formed by\nvoluntary association, or on the theory of voluntary association,\nand voluntary support, (as all the North American governments\nare,) no law can rightfully be enforced by the association in its\ncorporate capacity, against the goods, rights, or person of any\nindividual, except it be such as all the members of the\nassociation agree that it may enforce. To enforce any other law,\nto the extent of taking a man's goods, rights, or person, would be\nmaking some of the parties to the association accomplices in what\nthey regard as acts of injustice. It would also be making them\nconsent to what they regard as the destruction of their own\nrights. These are things which no legitimate system or theory of\ngovernment can require of any of the parties to it.\n\nThe mode adopted, by the trial by jury, for ascertaining whether\nall the parties to the government do approve of a particular law,\nis to take twelve men at random from the whole people, and accept\ntheir unanimous decision as representing the opinions of the\nwhole. Even this mode is not theoretically accurate; for\ntheoretical accuracy would require that every man, who was a\nparty to the government, should individually give his consent to the\nenforcement of every law in every separate case. But such a thing\nwould be impossible in practice. The consent of twelve men is\ntherefore taken instead; with-the privilege of appeal, and (in\ncase of error found by the appeal court) a new trial, to guard\nagainst possible mistakes. This system, it is assumed, will\nascertain the sense of the whole people   \"the country\"   with\nsufficient accuracy for all practical purposes, and with as much\naccuracy as is practicable without too great inconvenience and\nexpense.\n\n5. Another objection that will perhaps be made to allowing jurors\nto judge of the law, and the justice of the law, is, that the law\nwould be uncertain.\n\nIf, by this objection, it be meant that the law would be uncertain\nto the minds of the people at large, so that they would not know\nwhat the juries would sanction and what condemn, and would not\ntherefore know practically what their own rights and liberties\nwere under the law, the objection is thoroughly baseless and\nfalse. No system of law that was ever devised could be so entirely\nintelligible and certain to the minds of the people at large as\nthis. Compared with it, the complicated systems of law that are\ncompounded of the law of nature, of constitutional grants, of\ninnumerable and incessantly changing legislative enactments, and\nof countless and contradictory judicial decisions, with no uniform\nprinciple of reason or justice running through them, are among the\nblindest of all the mazes in which unsophisticated minds were ever\nbewildered and lost. The uncertainty of the law under these\nsystems has become a proverb. So great is this uncertainty, that\nnearly all men, learned as well as unlearned, shun the law as\ntheir enemy, instead of resorting to it for protection. They\nusually go into courts of justice, so called, only as men go into\nbattle   when there is no alternative left for them. And even then\nthey go into them as men go into dark labyrinths and caverns\nwith no knowledge of their own, but trusting wholly to their\nguides. Yet, less fortunate than other adventurers, they can have\nlittle confidence even in their guides, for the reason that the\nguides themselves know little of the mazes they are threading.\nThey know the mode and place of entrance; but what they will\nmeet with on their way, and what will be the time, mode, place,\nor condition of their exit; whether they will emerge into a prison,\nor not; whether wholly naked and destitute, or not; whether with\ntheir reputations left to them, or not; and whether in time or\neternity; experienced and honest guides rarely venture to predict.\nWas there ever such fatuity as that of a nation of men madly bent\non building up such labyrinhs as these, for no other purpose than\nthat of exposing all their rights of reputation, property, liberty,\nand life, to the hazards of being lost in them, instead of being\ncontent to live in the light of the open day of their own\nunderstandings?\n\nWhat honest, unsophisticated man ever found himself involved\nin a lawsuit, that he did not desire, of all things, that his cause\nmight be judged of on principles of natural justice, as those\nprinciples were understood by plain men like himself? He would\nthen feel that he could foresee the result. These plain men are\nthe men who pay the taxes, and support the government. Why\nshould they not have such an administration of justice as they\ndesire, and can understand?\n\nIf the jurors were to judge of the law, and the justice of the\nlaw, there would be something like certainty in the administration\nof justice, and in the popular knowledge of the law, and men\nwould govern themselves accordingly. There would be something\nlike certainty, because every man has himself something like\ndefinite and clear opinions, and also knows something of the\nopinions of his neighbors, on matters of justice. And he would\nknow that no statute, unless it were so clearly just as to command\nthe unanimous assent of twelve men, who should be taken at random\nfrom the whole community, could be enforced so as to take from him\nhis reputation, property, liberty, or life. What greater certainty can\nmen require or need, as to the laws under which they are to live?\nIf a statute were enacted by a legislature, a man, in order to know\nwhat was its true interpretation, whether it were constitutional, and\nwhether it would be enforced, would not be under the necessity of\nwaiting for years until some suit had arisen and been carried through\nall the stages of judicial proceeding, to a final decision. He would\nneed only to use his own reason as to its meaning and its justice,\nand then talk with his neighbors on the same points. Unless he\nfound them nearly unanimous in their interpretation and approbation\nof it, he would conclude that juries would not unite in enforcing it,\nand that it would consequently be a dead letter. And he would be\nsafe in coming to this conclusion.\n\nThere would be something like certainty in the administration of\njustice, and in the popular knowledge of the law, for the further\nreason that there would be little legislation, and men's rights\nwould be left to stand almost solely upon the law of nature, or\nwhat was once called in England \"the common law,\" (before so\nmuch legislation and usurpation had become incorporated into the\ncommon law,) in other words, upon the principles of natural justice.\nOf the certainty of this law of nature, or the ancient English\ncommon law, I may be excused for repeating here what, I have\nsaid on another occasion.\n\n\"Natural law, so far from being uncertain, when compared with\nstatutory and constitutional law, is the only thing that gives any\ncertainty at all to a very large portion of our statutory and\nconstitutional law. The reason is this. The words in which\nstatutes and constitutions are written are susceptible of so many\ndifferent meanings,   meanings widely different from, often\ndirectly opposite to, each other, in their bearing upon men's\nrights,   that, unless there were some rule of interpretation for\ndetermining which of these various and opposite meanings are the\ntrue ones, there could be no certainty at all as to the meaning of\nthe statutes and constitutions themselves. Judges could make\nalmost anything they should please out of them. Hence the\nnecessity of a rule of interpretation. And this rule is, that the\nlanguage of statutes and constitutions shall be construed, as\nnearly as possible, consistently with natural law.\n\nThe rule assumes, what is true, that natural law is a thing\ncertain in itself; also that it is capable of being learned. It\nassumes, furthermore, that it actually is understood by the\nlegislators and judges who make and interpret the written law.\nOf necessity, therefore, it assumes further, that they (the\nlegislators and judges) are incompetent to make and interpret the\nwritten law, unless they previously understand the natural law\napplicable to the same subject. It also assumes that the people\nmust understand the natural law, before they can understated the\nwritten law.\n\nIt is a principle perfectly familiar to lawyers, and one that must\nbe perfectly obvious to every other man that will reflect a\nmoment, that, as a general rule, no one can know what the written\nlaw is, until he knows what it ought to be; that men are liable to\nbe constantly misled by the various and conflicting senses of the\nsame words, unless they perceive the true legal sense in which the\nwords ought to be taken. And this true legal sense is the sense\nthat is most nearly consistent with natural law of any that the\nwords can be made to bear, consistently with the laws of language,\nand appropriately to the subjects to which they are applied.\n\nThough the words contain the law, the words themselves are not\nthe law. Were the words themselves the law, each single written\nlaw would be liable to embrace many different laws, to wit, as\nmany different laws as there were different senses, and different\ncombinations of senses, in which each and all the words were\ncapable of being taken.\n\nTake, for example, the Constitution of the United States. By\nadopting one or another sense of the single word \"free,\"  the\nwhole instrument is changed. Yet the word free is capable of some\nten or twenty different senses. So that, by changing the sense of\nthat single word, some ten or twenty different constitutions could\nbe made out of the same written instrument. But there are, we will\nsuppose, a thousand other words in the constitution, each of which\nis capable of from two to ten different senses. So that, by\nchanging the sense of only a single word at a time, several\nthousands of different constitutions would be made. But this is\nnot all. Variations could also be made by changing the senses of\ntwo or more words at a time, and these variations could be run\nthrough all the changes and combinations of senses that these\nthousand words are capable of. We see, then, that it is no more\nthan a literal truth, that out of that single instrument, as it\nnow stands, without altering the location of a single word, might\nbe formed, by construction and interpretation, more different\nconstitutions than figures can well estimate.\n\nBut each written law, in order to be a law, must be taken only in\nsome one definite and distinct sense; and that definite and\ndistinct sense must be selected from the almost infinite variety\nof senses which its words are capable of. How is this selection to\nbe made? It can be only by the aid of that perception of natural\nlaw, or natural justice, which men naturally possess.\nSuch, then, is the comparative certainty of the natural and the\nwritten law. Nearly all the certainty there is in the latter, so\nfar as it relates to principles, is based upon, and derived from,\nthe still greater certainty of the former. In fact, nearly all the\nuncertainty of the laws under which we live,   which are a mixture\nof natural and written laws,   arises from the difficulty of\nconstruing, or, rather, from the facility of misconstruing, the\nwritten law; while natural law has nearly or quite the same\ncertainty as mathematics. On this point, Sir William Jones, one of\nthe most learned judges that have ever lived, learned in Asiatic\nas well as European law, says,    and  the fact should be kept\nforever in mind, as one of the most important of all truths:   \"It\nis pleasing to remark, the similarity, or, rather, the identity of\nthose conclusions which pure, unbiased reason, in all ages; and\nnations, seldom fails to draw, in such juridical inquiries as are\nnot fettered and manacled by positive institutions.\" [4] In short,\nthe simple fact that the written law must be interpreted by the\nnatural, is, of itself, a sufficient confession of the superior\ncertainty of the latter.\n\nThe written law, then, even where it can be construed consistently\nwith the natural, introduces labor and obscurity, instead of\nshutting them out. And this must always be the case, because\nwords do not create ideas, but only recall them; and the same\nword may recall many different ideas. For this reason, nearly all\nabstract principles can be seen by the single mind more clearly\nthan they can be expressed by words to another. This is owing to the\nimperfection of language, and the different senses, meanings, and\nshades of meaning, which different individuals attach to the same\nwords, in the same circumstances. [5]\n\nWhere the written law cannot be construed consistently with the\nnatural, there is no reason why it should ever be enacted at all.\nIt may, indeed, be sufficiently plain and certain to be easily\nunderstood; but its certainty and plainness are but a poor\ncompensation for its injustice. Doubtless a law forbidding men to\ndrink water, on pain of death, might be made so intelligible as to\ncut off all discussion as to its meaning; but would the\nintelligibleness of such a law be any equivalent for the right to\ndrink water?\n\nThe principle is the same in regard to all unjust laws. Few\npersons could reasonably feel compensated for the arbitrary\ndestruction of their rights, by having the order for their\ndestruction made known beforehand, in terms so distinct and\nunequivocal as to admit of neither mistake nor evasion. Yet this\nis all the compensation that such laws offer.\n\nWhether, therefore, written laws correspond with, or differ from,\nthe natural, they are to be condemned. In the first case, they are\nuseless repetitions, introducing labor and obscurity. In the\nlatter case, they are positive violations of men's rights.\nThere would be substantially the same reason in enacting\nmathematics by statute, that there is in enacting natural law.\nWhenever the natural law is sufficiently certain to all men's\nminds to justify its being enacted, it is sufficiently certain to\nneed no enactment. On the other hand, until it be thus certain,\nthere is danger of doing injustice by enacting it; it should,\ntherefore, be left open to be discussed by anybody who may be\ndisposed to question it, and to be judged of by the proper\ntribunal, the judiciary. [6]\n\nIt is not necessary that legislators should enact natural law in\norder that it may be known to the people, because that would be\npresuming that the legislators already understand it better than\nthe people,   a fact of which I am not aware that they have ever\nheretofore given any very satisfactory evidence. The same sources\nof knowledge on the subject are open to the people that are open\nto the legislators, and the people must be presumed to know it as\nwell as they.\n\nThe objections made to natural law, on the ground of obscurity,\nare wholly unfounded. It is true, it must be learned, like any\nother science; but it is equally true that it is very easily\nlearned. Although as illimitable in its applications as the\ninfinite relations of men to each other, it is, nevertheless, made\nup of simple elementary principles, of the truth and justice of\nwhich every ordinary mind has an almost intuitive perception. It\nis the science of justice,   and almost all men have the same\nperceptions of what constitutes justice, or of what justice\nrequires, when they understand alike the facts from which their\ninferences are to be drawn. Men living in contact with each other,\nand having intercourse together, cannot avoid learning natural\nlaw, to a very great extent, even if they would. The dealings of\nmen with men, their separate possessions, and their individual\nwants, are continually forcing upon their minds the questions,\nIs this act just? or is it unjust? Is this thing mine? or is it\nhis? And these are questions of natural law; questions, which, in\nregard to the great mass of cases, are answered alike by the human\nmind everywhere.\n\nChildren learn many principles of natural law at a very early age.\nFor example: they learn that when one child has picked up an\napple or a flower, it is his, and that his associates must not take it\nfrom him against his will. They also learn that if he voluntarily\nexchange his apple or flower with a playmate, for some other\narticle of desire, he has thereby surrendered his right to it, and\nmust not reclaim it. These are fundamental principles of natural\nlaw, which govern most of the greatest interests of individuals\nand society; yet children learn them earlier than they learn that\nthree and three are six, or five and five, ten. Talk of enacting\nnatural law by statute, that it may be known! It would hardly be\nextravagant to say, that, in nine cases in ten, men learn it\nbefore they have learned the language by which we describe it.\nNevertheless, numerous treatises are written on it, as on other\nsciences. The decisions of courts, containing their opinions upon\nthe almost endless variety of cases that have come before them,\nare reported; and these reports are condensed, codified, and\ndigested, so as to give, in a small compass, the facts, and the\nopinions of the courts as to the law resulting from them. And\nthese treatises, codes, and digests are open to be read of all\nmen. And a man has the same excuse for being ignorant of\narithmetic, or any other science, that he has for being ignorant\nof natural law. He can learn it as well, if he will, without its\nbeing enacted, as he could if it were.\n\nIf our governments would but themselves adhere to natural law,\nthere would be little occasion to complain of the ignorance of the\npeople in regard to it. The popular ignorance of law is\nattributable mainly to the innovations that have been made upon\nnatural law by legislation; whereby our system has become an\nincongruous mixture of natural and statute law, with no uniform\nprinciple pervading it. To learn such a system,   if system it can\nbe called, and if learned it can be,   is a matter of very similar\ndifficulty to what it would be to learn a system of mathematics,\nwhich should consist of the mathematics of nature, interspersed\nwith such other mathematics as might be created by legislation, in\nviolation of all the natural principles of numbers and quantities.\n\nBut whether the difficulties of learning natural law be greater or\nless than here represented, they exist in the nature of things,\nand cannot be removed. Legislation, instead of removing, only\nincreases them; This it does by innovating upon natural truths and\nprinciples, and introducing jargon and contradiction, in the place\nof order, analogy, consistency, and uniformity.\n\nFurther than this; legislation does not even profess to remove the\nobscurity of natural law. That is no part of its object. It only\nprofesses to substitute something arbitrary in the place of\nnatural law. Legislators generally have the sense to see that\nlegislation will not make natural law any clearer than it is.\nNeither is it the object of legislation to establish the authority\nof natural law. Legislators have the sense to see that they can\nadd nothing to the authority of natural law, and that it will\nstand on its own authority, unless they overturn it.\nThe whole object of legislation, excepting that legislation which\nmerely makes regulations, and provides instrumentalities for\ncarrying other laws into effect, is to overturn natural law, and\nsubstitute for it the arbitrary will of power. In other words, the\nwhole object of it is to destroy men's rights. At least, such is\nits only effect; and its designs must be inferred from its effect.\nTaking all the statutes in the country, there probably is not one\nin a hundred, except the auxiliary ones just mentioned,   that\ndoes not violate natural law; that does not invade some right or\nother.\n\nYet the advocates of arbitrary legislation are continually\npractising the fraud of pretending that unless the legislature\nmake the laws, the laws will not be known. The whole object of\nthe fraud is to secure to the government the authority of making\nlawsthat never ought to be known.\"\n\nIn addition to the authority already cited, of Sir William Jones,\nas to the certainty of natural law, and the uniformity of men's\nopinions in regard to it, I may add the following:\n\n\"There is that great simplicity and plainness in the Common Law,\nthat Lord Coke has gone so far as to assert, (and Lord Bacon\nnearly seconds him in observing,) that  'he never knew two\nquestions arise merely upon common law; but that they were\nmostly owing to statutes ill-penned and overladen with provisos.' \"\n3 Eunomus, 157   8.\n\nIf it still be said that juries would disagree, as to what was\nnatural justice, and that one jury would decide one way, and\nanother jury another; the answer is, that such a thing is hardly\ncredible, as that twelve men, taken at random from the people at\nlarge, should unanimously decide a question of natural justice one\nway, and that twelve other men, selected in the same manner,\nshould unanimously decide the same question the other way,\nunless they were misled by the justices. If, however, such things\nshould sometimes happen, from any cause whatever, the remedy\nis by appeal, and new trial.\n\n[1] Judges do not even live up to that part of their own maxim,\nwhich requires jurors to try the matter of fact. By dictating to\nthem the laws of evidence,   that is, by dictating what evidence\nthey may hear, and what they may not hear, and also by dictating\nto them rules for weighing such evidence as they permit them to\nhear,   they of necessity dictate the conclusion to which they\nshall arrive. And thus the court really tries the question of\nfact, as well as the question of law, in every cause. It is\nclearly impossible, in the nature of things, for a jury to try, a\nquestion of fact, without trying every question of law on which\nthe fact depends.\n\n[2] Most disagreements of juries are on matters of fact, which are\nadmitted to be within their province. We have little or no\nevidence of their disagreements on matters of natural justice. The\ndisagreements of courts on matters of law, afford little or no\nevidence that juries would also disagree on matters of law   that\nis, of justice, because the disagreements of courts are generally\non matters of legislation, and not on those principles of abstract\njustice, by which juries would be governed, and in regard to which\nthe minds of men are nearly unanimous.\n\n[3] This is the principle of all voluntary associations\nwhatsoever. No voluntary association was ever formed, and in the\nnature of things there never can be one formed, for the\naccomplishment of any objects except those in which all the\nparties to the association are agreed. Government, therefore, must\nbe kept within these limits, or it is no longer a voluntary\nassociation of all who contribute to its support, but a mere\ntyrant established by a part over the rest.\n\nAll, or nearly all, voluntary associations give to a majority, or\nto some other portion of the members less than the whole, the\nright to use some limited discretion as to themeans to be used to\naccomplish the ends in view; but the end themselves to be\naccomplished are always precisely defined, and are such as every\nmember necessarily agrees to, else he would not voluntarily join\nthe association.\n\nJustice is the object of government, and those who support the\ngovernment, must be agreed as to the justice to be executed by it,\nor they cannot rightfully unite in maintaining the government\nitself.\n\n[4] Jones on Bailments,\n\n[5] Kent, describing the difficulty of construing the written law,\nsays:\n\n\"Such is the imperfection of language, and the want of technical\nskill in the makers of the law, that statutes often give occasion\nto the most perplexing and distressing doubts and discussions,\narising from the ambiguity that attends them. It requires great\nexperience, as well as the command of a perspicuous diction, to\nframe a law in such clear and precise terms, as to secure it from\nambiguous expressions, and from all doubts and criticisms upon its\nmeaning \"   Kent, 460.\n\nThe following extract from a speech of Lord Brougham, in the\nHouse of Lords, confesses the same difficulty:\n\nThere was another subject, well worthy of the consideration of\ngovernment during the recess, the expediency, or rather the\nabsolute necessity, of some arrangement for the preparation of\nbills, not merely private, but public bills, in order that\nlegislation might be consistent and systematic, and that the\ncourts might not have so large a portion of their time occupied in\nendeavoring to construe acts of Parliament, in many cases\nunconstruable, and in most cases difficult to be construed.\"   Law\nReporter, 1848, p. 525.\n\n[6] This condemnation of written laws must, of course, be\nunderstood as applying only to cases where principles and rights\nare involved, and not as condemning any governmental\narrangements, or instrumentalities, that are consistent with natural\nright, and which must be agreed upon for the purpose of carrying\nnatural law into effect. These things may be varied, as expediency\nmay dictate, so only that they be allowed to infringe no principle of\njustice. And they must, of course, be written, because they do not\nexist as fixed principles, or laws in nature.\n\n\nCHAPTER VI. JURIES OF THE PRESENT DAY ILLEGAL\n\nIt may probably be safely asserted that there are, at this day,\nno legal juries, either in England or America. And if there are\nno legal juries, there is, of course, no legal trial, nor\n\"judgment,\" by jury.\n\nIn saying that there are probably no legal juries, I mean that\nthere are probably no juries appointed in conformity with the\nprinciples of the common law.\n\nThe term jury is a technical one, derived from the common law;\nand when the American constitutions provide for the trial by\njury, they provide for the common law trial by jury; and not\nmerely for any trial by jury that the government itself may\nchance to invent, and call by that name. It is the thing, and not\nmerely the name, that is guarantied. Any legislation, therefore,\nthat infringes any essential principle of the common law, in the\nselection of jurors, is unconstitutional; and the juries selected\nin accordance with such legislation are, of course, illegal, and\ntheir judgments void.\n\nIt will also be shown, in a subsequent chapter, [1] that since\nMagna Carta, the legislative power in England (whether king or\nparliament) has never had any constitutional authority to\ninfringe, by legislation, any essential principle of the common\nlaw in the selection of jurors. All such legislation is as much\nunconstitutional and void, as though it abolished the trial by\njury altogether. In reality it does abolish it.\n\nWhat, then, are the essential principles of the common law,\ncontrolling the selection of jurors?\n\nThey are two.\n\n1. That all the freemen, or adult male members of the state,\nshall be eligible as jurors. [2]\n\nAny legislation which requires the selection of jurors to be made\nfrom a less number of freemen than the whole, makes the jury\nselected an illegal one.\n\nIf a part only of the freemen, or members of the state, are\neligible as jurors, the jury no longer represent \"the country,\"\nbut only a part of \"the country.\"\n\nIf the selection of jurors can be restricted to any less number\nof freemen than the whole, it can be restricted to a very small\nproportion of the whole; and thus the government be taken out of\nthe hands of \" the country,\" or the whole people, and be thrown\ninto the hands of a few.\n\nThat, at common law, the whole body of freemen were eligible as\njurors, is sufficiently proved, not only by the reason of the\nthing, but by the following evidence:\n\n1. Everybody must be presumed eligible, until the contrary\nbe shown. We have no evidence, that I am aware of, of a\nprior date to Magna Carta, to disprove that all freemen were\neligible as jurors, unless it be the law of Ethelred, which\nrequires that they be elderly [3] men. Since no specific age\nis given, it is probable, I think, that this statute meant\nnothing more than that they be more than twenty-one years\nold. If it meant anything more, it was probably contrary to\nthe common law, and therefore void.\n\n2. Since Magna Carta, we have evidence showing quite\nconclusively that all freemen, above the age of twenty-one\nyears, were eligible as jurors.\n\nThe Mirror of Justices, (written within a century after\nMagna Carta,) in the section \" Of Judges\"   that is, jurors\nsays:\n\n\"All those who are not forbidden by law may be judges\n(jurors).\n\nTo women it is forbidden by law that they be judges; and thence it\nis, that feme coverts are exempted to do suit in inferior courts.\nOn the other part, a villein cannot be a judge, by reason of the\ntwo estates, which are repugnants; persons attainted of false\njudgments cannot be judges, nor infants, nor any under the age of\ntwenty-one years, nor infected persons, nor idiots, nor madmen,\nnor deaf, nor dumb, nor parties in the pleas, nor men\nexcommunicated by the bishop, nor criminal persons. * * And\nthose who are not of the Christian faith cannot be judges, nor those\nwho are out of the king's allegiance.\"   Mirror of Justices, 59   60.\n\nIn the section \" Of Inferior Courts,\" it is said:\n\n\"From the first assemblies came consistories, which we now call\ncourts, and that in divers places, and in divers manners: whereof\nthe sheriffs held one monthly, or every five weeks according to\nthe greatness or largeness of the shires. And these courts are\ncalled county courts, where the judgment is by the suitors, if\nthere be no writ, and is by warrant of jurisdiction ordinary. The\nother inferior courts are the courts of every lord of the fee, to\nthe likeness of the hundred courts. There are other inferior\ncourts which the bailiffs hold in every hundred, from three weeks\nto three weeks, by the suitors of the freeholders of the hundred.\nAll the tenants within the fees are bounden to do their suit\nthere, and that not for the service of their persons, but for the\nservice of their fees. But women, infants within the age of\ntwenty-one years, deaf, dumb, idiots, those who are indicted or\nappealed of mortal felony, before they be acquitted, diseased\npersons, and excommunicated persons are exempted from doing\nsuit.\"  Mirror of Justices, 50   51.\n\nIn the section \"Of the Sheriff's Turns,\" it is said:\n\n\"The sheriff's by ancient ordinances hold several meetings twice\nin the year in every hundred; where all the freeholders within the\nhundred are bound to appear for the service of their fees.\"\nMirror of Justices, 50.\n\nThe following statute was passed by Edward I., seventy years after\nMagna Carta:\n\n\"Forasmuch also as sheriffs, hundreders, and bailiffs of\nliberties, have used to grieve those which be placed under them,\nputting in assizes and juries men diseased and decrepit, and\nhaving continual or sudden disease; and men also that dwelled not\nin the country at the time of the summons; and summon also an\nunreasonable number of jurors, for to extort money from some of\nthem, for letting them go in peace, and so the assizes and juries\npass many times by poor men, and the rich abide at home by\nreason of their bribes; it is ordained that from henceforth in one\nassize no more shall be summoned than four and twenty; and\nold men above three score and ten years, being continually sick,\nor being diseased at the time of the summons, or not dwelling in\nthat country, shall not be put in juries of petit assizes.\"   St. 13\nEdward I., ch. 38. (1285.)\n\nAlthough this command to the sheriff's and other officers, not to\nsummon, as jurors, those who, from age and disease, were\nphysically incapable of performing the duties, may not, of itself,\nafford any absolute or legal implication, by which we can\ndetermine precisely who were, and who were not, eligible as jurors\nat common law, yet the exceptions here made nevertheless carry a\nseeming confession with them that, at common law, all male\nadults were eligible as jurors.\n\nBut the main principle of the feudal system itself, shows that all\nthe full and free adult male members of the state   that is, all\nwho were free born, and had not lost their civil rights by crime,\nor otherwise   must, at common law, have been eligible as jurors.\nWhat was that principle? It was, that the state rested for support\nupon the land, and not upon taxation levied upon the people\npersonally. The lands of the country were considered the property\nof the state, and were made to support the state in this way: A\nportion of them was set apart to the king, the rents of which went\nto pay his personal and official expenditures, not including the\nmaintenance of armies, or the administration of justice. War and\nthe administration of justice were provided for in the following\nmanner. The freemen, or the free-born adult male members of the\nstate   who had not forfeited their political rights   were\nentitled to land of right, (until all the land was taken up,) on\ncondition of their rendering certain military and civil services,\nto the state. The military services consisted in serving\npersonally as soldiers, or contributing an equivalent in horses,\nprovisions, or other military supplies. The civil services\nconsisted, among other things, in serving as jurors (and, it would\nappear, as witnesses) in the courts of justice. For these services\nthey received no compensation other than the use of their lands.\nIn this way the state was sustained; and the king had no power to\nlevy additional burdens or taxes upon the people. The persons\nholding lands on these terms were called freeholders   in later\ntimes freemen   meaning free and full members of the state.\n\nNow, as the principle of the system was that the freeholders held\ntheir lands of the state, on the condition of rendering these\nmilitary and civil services as rents for their lands, the\nprinciple implies that all the freeholders were liable to these\nrents, and were therefore eligible as jurors. Indeed, I do not\nknow that it has ever been doubted that, at common law, all the\nfreeholders were eligible as jurors. If all had not been eligible,\nwe unquestionably should have had abundant evidence of the\nexceptions. And if anybody, at this day, allege any exceptions,\nthe burden will be on him to prove them. The presumption clearly\nis that all were eligible.\n\nThe first invasion which I find made, by the English statutes,\nupon this common law principle, was made in I285, seventy years\nafter Magna Carta. It was then enacted as follows:\n\n\"Nor shall, any be put in assizes or juries, though they ought to\nbe taken in their own shire, that hold a tenement of less than the\nvalue of twenty shillings yearly. And if such assizes and juries\nbe taken out of the shire, no one shall be placed in them who\nholds a tenement of less value than forty shillings yearly at the\nleast, except such as be witnesses in deeds or other writings,\nwhose presence is necessary, so that they be able to travel.\"\nSt. 13 .Edward I., ch. 38. (1285.)\n\nThe next invasion of the common law, in this particular, was made\nin 1414, about two hundred years after Magna Carta, when it was\nenacted:\n\n\"That no person shall be admitted to pass in any inquest upon\ntrial of the death of a man, nor in any inquest betwixt party and\nparty in plea real, nor in plea personal, whereof the debt or the\ndamage declared amount to forty marks, if the same person have\nnot lands or tenements of the yearly value of forty shillings above\nall charges of the same.\"   2 Henry V., st. 2, ch. 3. (1414.)\n\nOther statutes on this subject of the property qualifications of\njurors, are given in the note. [4]\n\nFrom these statutes it will be seen that, since 1285, seventy\nyears after Magna Carta, the common law right of all free British\nsubjects to eligibility as jurors has been abolished, and  the\nqualifications of jurors have been made a subject of arbitrary\nlegislation. In other words, the government has usurped the\nauthority of selecting the jurors that were to sit in judgment\nupon its own acts. This is destroying the vital principle of the\ntrial by jury itself, which is that the legislation of the government\nshall be subjected to the judgment of a tribunal, taken\nindiscriminately from the whole people, without any choice by the\ngovernment, and over which the government can exercise no\ncontrol. If the government can select the jurors, it will, of course,\nselect those whom it supposes will be favorable to its enactments.\nAnd an exclusion of any of the freemen from eligibility is a\nselection of those not excluded.\n\nIt will be seen, from the statutes cited, that the most absolute\nauthority over the jury box   that is, over the right of the\npeople to sit in juries   has been usurped by the government; that\nthe qualifications of jurors have been repeatedly changed, and\nmade to vary from a freehold of ten shillings yearly, to one of\n\"twenty pounds by the year at least above reprises.\" They have\nalso been made different, in the counties of Southampton, Surrey,\nand Sussex, from what they were in the other counties; different\nin Wales from what they were in England; and different in the city\nof London, and in the county of Middlesex, from what they were in\nany other part of the kingdom.\n\nBut this is not all. The government has not only assumed\narbitrarily to classify the people, on the basis of property, but\nit has even assumed to give to some of its judges entire and\nabsolute personal discretion in the selection of the jurors to be\nimpaneled in criminal cases, as the following statutes show.\n\n\"Be it also ordained and enacted by the same authority, that all\npanels hereafter to be returned, which be not at the suit of any\nparty, that shall be made and put in afore any justice of gaol\ndelivery or justices of peace in their open sessions to inquire\nfor the king, shall hereafter be reformed by additions and taking\nout of names of persons by discretion of the same justices before\nwhom such panel shall be returned; and the same justices shall\nhereafter command the sheriff, or his ministers in his absence, to\nput other persons in the same panel by their discretions; and that\npanel so hereafter to be made, to be goodand lawful.  This act to\nendure only to the next Parliament \"   11 Henry VII., ch. 24, sec.\n6. (1495.)\n\nThis act was continued in force by 1 Henry VIII, ch. 11, (1509,)\nto the end of the then next Parliament.\n\nIt was reenacted, and made perpetual, by 3 Henry VIII., ch. 12.\n(1511.)\n\nThese acts gave unlimited authority to the king's' justices to\npack juries at their discretion; and abolished the last vestige of\nthe common law right of the people to sit as jurors, and judge of\ntheir own liberties, in the courts to which the acts applied.\n\nYet, as matters of law, these statutes were no more clear\nviolations of the common law, the fundamental and paramount\n\"law of the land,\" than were those statutes which affixed the\nproperty qualifications before named; because, if the king, or the\ngovernment, can select the jurors on the ground of property, it\ncan select them on any other ground whatever.\n\nAny infringement or restriction of the common law right of the\nwhole body of the freemen of the kingdom to eligibility as jurors,\nwas legally an abolition of the trial by jury itself. The juries\nno longer represented \"the country,\" but only a part of the\ncountry; that part, too, on whose favor the government chose to\nrely for the maintenance of its power, and which it therefore saw\nfit to select as being the most reliable instruments for its\npurposes of oppression towards the rest. And the selection was\nmade on the same principle, on which tyrannical governments\ngenerally select their supporters, viz., that of conciliating\nthose who would be most dangerous as enemies, and most\npowerful as friends that is, the wealthy. [6]\n\nThese restrictions, or indeed any one of them, of the right of\neligibility as jurors, was, in principle, a complete abolition of\nthe English constitution; or, at least, of its most vital and\nvaluable part. It was, in principle, an assertion of a right, on\nthe part of the government, to select the individuals who were to\ndetermine the authority of its own laws, and the extent of its own\npowers. It was, therefore, in effect, the assertion of a right, on\nthe part of the government itself, to determine its own powers,\nand the authority of its own legislation, over the people; and a\ndenial of all right, on the part of the people, to judge of or\ndetermine their own liberties against the government. It was,\ntherefore, in reality, a declaration of entire absolutism on the\npart of the government. It was an act as purely despotic, in\nprinciple, as would have been the express abolition of all juries\nwhatsoever. By \"the law of the land,\" which the kings were sworn\nto maintain, every free adult male British subject was eligible to\nthe jury box, with full power to exercise his own judgment as to\nthe authority and obligation of every statute of the king, which\nmight come before him. But the principle of these statutes (fixing\nthe qualifications of jurors) is, that nobody is to sit in\njudgment upon the acts or legislation of the king, or the\ngovernment, except those whom the government itself shall select\nfor that purpose. A more complete subversion of the essential\nprinciples of the English constitution could not be devised.\n\nThe juries of England are illegal for another reason, viz., that\nthe statutes cited require the jurors (except in London and a few\nother places) to be freeholders. All the other free British\nsubjects are excluded; whereas, at common law, all such subjects\nare eligible to sit in juries, whether they be freeholders or not.\n\nIt is true, the ancient common law required the jurors to be\nfreeholders; but the term freeholder no longer expresses the same\nidea that it did in the ancient common law; because no land is now\nholden in England on the same principle, or by the same tenure, as\nthat on which all the land was held in the early times of the\ncommon law.\n\nAs has heretofore been mentioned, in the early times of the\ncommon law the land was considered the property of the state;\nand was all holden by the tenants, so called, (that is, holders,)\non the condition of their rendering certain military and civil services\nto the state, (or to the king as the representative of the state,)\nunder the name of rents. Those who held lands on these terms\nwere called free tenants, that is, free holders   meaning free persons,\nor members of the state, holding lands   to distinguish them from\nvilleins, or serfs, who were not members of the state, but held\ntheir lands by a more servile tenure, and also to distinguish them\nfrom persons of foreign birth, outlaws, and all other persons, who\nwere not members of the state.\n\nEvery freeborn adult male Englishman (who had not lost his civil\nright\" by crime or otherwise) was entitled to land of right; that\nis, by virtue of his civil freedom, or membership of the body\npolitic. Every member of the state was therefore a freeholder; and\nevery freeholder was a member of the state. And the members of\nthe state were therefore called freeholders. But what is material to\nbe observed, is, that a man's right to land was an incident to his\ncivil freedom; not his civil freedom an incident to his right to\nland. He was a freeholder because he was a freeborn member of\nthe state; and not a freeborn member of the state because he was a\nfreeholder; for this last would be an absurdity.\n\nAs the tenures of lands changed, the term freeholder lost its\noriginal significance, and no longer described a man who held land\nof the state by virtue of his civil freedom, but only one who held\nit in fee-simple   that is, free of any liability to military or\ncivil services. But the government, in fixing the qualifications\nof jurors, has adhered to the term freeholder after that term has\nceased to express the thing originally designated by it.\n\nThe principle, then, of the common law, was, that every freeman,\nor freeborn male Englishman, of adult age, &c;., was eligible to\nsit in juries, by virtue of his civil freedom, or his being a\nmember of the state, or body politic. Rut the principle of the\npresent English statutes is, that a man shall have a right to sit\nin juries because he owns lands in fee-simple. At the common law\na man was born to the right to sit in juries. By the present\nstatutes he buys that right when he buys his land. And thus this,\nthe greatest of all the political rights of an Englishman, has\nbecome a mere article of merchandise; a thing that is bought and\nsold in the market for what it will bring.\n\nOf course, there can be no legality in such juries as these; but\nonly in juries to which every free or natural born adult male\nEnglishman is eligible.\n\nThe second essential principle of the common law, controlling the\nselection of jurors, is, that when the selection of the actual\njurors comes to be made, (from the whole body of male adults,)\nthat selection shall be made in some mode that excludes the\npossibility of choice on the part of the government.\n\nOf course, this principle forbids the selection to be made by any\nofficer of the government.\n\nThere seem to have been at least three modes of selecting the\njurors, at the common law. 1. By lot. [7] 2. Two knights, or other\nfreeholders, were appointed, (probably by the sheriff,) to select\nthe jurors. 3. By the sheriff, bailiff, or other person, who held\nthe court, or rather acted as its ministerial officer. Probably\nthe latter mode may have been the most common, although there\nmay be some doubt on this point.\n\nAt the common law the sheriff's, bailiffs, and other officers were\nchosen by the people, instead of being appointed by the king. (4\nBlackstone, 413. Introduction to Gilbert's History of the Common\nPleas, p. 2; note, and p. 4.) This has been shown in a former\nchapter. [8] At common law, therefore, jurors selected by these\nofficers were legally selected, so far as the principle now under\ndiscussion is concerned; that is, they were not selected by any\nofficer who was dependent on the government.\n\nBut in the year 1315, one hundred years after Magna Carta, the\nchoice of sheriff's was taken from the people, and it was enacted:\n\n\"That the sheriffs shall henceforth be assigned by the chancellor,\ntreasurer, barons of the exchequer, and by the justices. And in\nthe absence of the chancellor, by the treasurer, barons and\njustices.\"   9 Edward II., st. 2. (1315.)\n\nThese officers, who appointed the sheriffs, were themselves\nappointed by the king, and held their offices during his pleasure.\nTheir appointment of sheriffs was, therefore, equivalent to an\nappointment by the king himself. And the sheriffs, thus appointed,\nheld their offices only during the pleasure of the king, and were\nof course mere tools of the king; and their selection of jurors\nwas really a selection by the king himself. In this manner the\nking usurped the selection of the jurors who were to sit in\njudgment upon his own laws.\n\nHere, then, was another usurpation, by which the common law trial\nby jury was destroyed, so far as related to the county courts, in\nwhich the sheriff's presided, and which were the most important\ncourts of the kingdom. From this cause alone, if there were no\nother, there has not been a legal jury in a county court in\nEngland, for more than five hundred years.\n\nIn nearly or quite all the States of the United States the juries\nare illegal, for one or the other of the same reasons that make\nthe juries in England illegal.\n\nIn order that the juries in the United States may be legal   that\nis, in accordance with the principles of the common law it is\nnecessary that every adult male member of the state should have\nhis name in the jury box, or be eligible as a juror. Yet this is\nthe case in hardly a single state.\n\nIn New Jersey, Maryland, North Carolina, Tennessee, and\nMississippi, the jurors are required to be freeholders. But this\nrequirement is illegal, for the reason that the term freeholder,\nin this country, has no meaning analogous to the meaning it had in\nthe ancient common law.\n\nIn Arkansas, Missouri, Indiana, and Alabama, jurors are required\nto be \"freeholders or householders.\" Each of these requirements is\nillegal.\n\nIn Florida, they are required to be \"householders.\"\n\nIn Connecticut, Maine, Ohio, and Georgia, jurors are required to\nhave the qualifications of \"electors.\"\n\nIn Virginia, they are required to have a property qualification of\none hundred dollars.\n\nIn Maine, Massachusetts, Vermont, Connecticut, New York, Ohio,\nIndiana, Michigan, and Wisconsin, certain civil authorities of the\ntowns, cities, and counties are authorized to select, once in one,\ntwo, or three years, a certain number of the people   a small\nnumber compared with the whole   from whom jurors are to be\ntaken\nwhen wanted; thus disfranchising all except, the few thus\nselected.\n\nIn Maine and Vermont, the inhabitants, by vote in town meeting,\nhave a veto upon the jurors selected by the authorities of the\ntown.\n\nIn Massachusetts, the inhabitants, by vote in town meeting, can\nstrike out any names inserted by the authorities, and insert\nothers; thus making jurors elective by the people, and, of course,\nrepresentatives only of a majority of the people.\n\nIn Illinois, the jurors are selected, for each term of court, by\nthe county commissioners.\n\nIn North Carolina, \"the courts of pleas and quarter sessions shall\nselect the names of such persons only as are freeholders, and as\nare well qualified to act as jurors, &c;.; thus giving the courts\npower to pack the juries.\"   (Revised Statutes, 147.)\n\nIn Arkansas, too, \"It shall be the duty of the county court of\neach county * to make out and cause to be delivered to the sheriff\na list of not less than sixteen, nor more than twenty-three\npersons, qualified to serve as grand jurors;\" and the sheriff is\nto summon such persons to serve as grand jurors.\n\nIn Tennessee, also, the jurors are to be selected by the county\ncourts.\n\nIn Georgia, the jurors are to be selected by \"the justices of the\ninferior courts of each county, together with the sheriff and\nclerk, or a majority of them.\"\n\nIn Alabama, \"the sheriff; judge of the county court, and clerks of\nthe circuit and county courts,\" or \"a majority of\" them, select\nthe jurors.\n\nIn Virginia, the jurors are selected by the sheriffs; but the\nsheriff's are appointed by the governor of the state, and that is\nenough to make the juries illegal. Probably the same objection\nlies against the legality of the juries in some other states.\n\nHow jurors are appointed, and what are their qualifications, in\nNew Hampshire, Rhode Island, Pennsylvania, Delaware, South\nCarolina, Kentucky, Iowa, Texas, and California, I know not.\nThere\nis little doubt that there is some valid objection to them, of the\nkinds already suggested, in all these states.\n\nIn regard to jurors in the courts of the United States, it is\nenacted, by act of Congress:\n\n\"That jurors to serve in the courts of the United States, in each\nstate respectively, shall have the like qualifications and be\nentitled to the like exemptions, as jurors of the highest court of\nlaw of such state now have and are entitled to, and shall\nhereafter, from time to time, have and be entitled to, and shall\nbe designated by ballot, lot, or otherwise, according to the mode\nof forming such juries now practised and hereafter to be practised\ntherein, in so far as such mode may be practicable by the courts\nof the United States, or the officers thereof; and for this\npurpose, the said courts shall have power to make all necessary\nrules and regulations for conforming the designation and\nempanelling of jurors, in substance, to the laws and usages now in\nforce in such state; and, further, shall have power, by role or\norder, from time to time, to conform the same to any change in\nthese respects which may be hereafter adopted by the legislatures\nof the respective states for the state courts.\"   St. 1840, ch.\n47, Statutes at Large, vol. 5, p. 394.\n\nIn this corrupt and lawless manner, Congress, instead of taking\ncare to preserve the trial by jury, so far as they might, by\nproviding for the appointment of legal juries   incomparably the\nmost important of all our judicial tribunals, and the only ones on\nwhich the least reliance can be placed for the preservation of\nliberty   have given the selection of them over entirely to the\ncontrol of an indefinite number of state legislatures, and thus\nauthorized each state legislature to adapt the juries of the\nUnited States to the maintenance of any and every system of\ntyranny that may prevail in such state.\n\nCongress have as much constitutional right to give over all the\nfunctions of the United States government into the hand of the\nstate legislatures, to be exercised within each state in such\nmanner as the legislature of such state shall please to exercise\nthem, as they have to thus give up to these legislatures the\nselection of juries for the courts of the United States.\n\nThere has, probably, never been a legal jury, nor a legal trial by\njury, in a single court of the United States, since the adoption\nof the constitution.\n\nThese facts show how much reliance can be placed in written\nconstitutions, to control the action of the government, and\npreserve the liberties of the people.\n\nIf the real trial by jury had been preserved in the courts of the\nUnited States   that is, if we had had legal juries, and the\njurors had known their rights   it is hardly probable that one\ntenth of the past legislation of Congress would ever have been\nenacted, or, at least, that, if enacted, it could have been\nenforced.\n\nProbably the best mode of appointing jurors would be this: Let the\nnames of all the adult [male] [9] members of the state, in each\ntownship, be kept in a jury box, by the officers of the township;\nand when a court is to be held for a county or other district, let\nthe officers of a sufficient number of townships be required\n(without seeing the names) to draw out a name from their boxes\nrespectively, to be returned to the court as a juror. This mode of\nappointment would guard against collusion and selection; and\njuries so appointed would be likely to be a fair epitome of \"the\ncountry.\"\n\n[1]On the English Constitution.\n\n[2] Although all the freemen are legally eligible as jurors, any\none may nevertheless be challenged and set aside, at the trial,\nfor any special personal disqualification; such as mental or\nphysical inability to perform the duties; having been convicted,\nor being under charge, of crime; interest, bias, &c;. But it is\nclear that the common law allows none of these points to be\ndetermined by the court, but only by \"triers.\"\n\n[3] What was the precise meaning of the Saxon word, which I have\nhere called elderly, I do not know. In the Latin translations it\nis rendered by seniores, which may perhaps mean simply those\nwho have attained their majority.\n\n[4] In 1485 it was enacted, by a statute entitled \" Of what credit\nand estate those jurors must be which shall be impaneled in the\nSheriff's Turn.\"\n\n\"That no bailiff nor other officer from henceforth return or\nimpanel any such person in any shire of England, to be taken or\nput in or upon any inquiry in any of the said Turns, but such as\nbe of good name and fame, and having lands and tenements of\nfreehold within the same shires, to the yearly value of twenty\nshillings at the least, or else lands and tenements holden by\ncustom of manor, commonly called copy-hold, within the said\nshires, to the yearly value of twenty-six shillings eight pence\nover all charges at the least.\"   1 Richard III., ch. 4. (1483 )\n\nIn 1486 it was enacted, \" That the justices of the peace of every\nshire of this realm for the time being may take, by their\ndiscretion, an inquest, whereof every man shall have lands and\ntenements to the yearly value of forty shillings at the least, to\ninquire of the concealments of others,\" &c;., &c;.   3 Henry VII,\nch. 1. (1486.)\n\nA statute passed in 1494, in regard to jurors in the city of\nLondon, enacts:\n\n\"That no person nor persons hereafter be impaneled, summoned,\nor sworn in any jury or inquest in courts within the same city, (of\nLondon,) except he be of lands, tenements, or goods and chattels,\nto the value of forty marks; [5] and that no person or persons\nhereafter be impaneled, summoned, nor sworn in any jury or\ninquest in any court within the said city, for lands or tenements, or\naction personal, wherein the debt or damage amounteth to the sum\nof forty marks, or above, except he be in lands tenements, goods,\nor chattels, to the value of one hundred marks.\"   11 Henry VII.\nch. 21. (1494.)\n\nThe statute 4 Henry VIII, ch. 3, sec. 4, (1512) requires jurors in\nLondon to have \"goods to the value of one hundred marks.\"\n\nIn 1494 it was enacted that \"It shall be lawful to every sheriff\nof the counties of Southampton, Surrey., and Sussex, to impanel\nand summons twenty-four lawful men of such, inhabiting within\nthe precinct of his or their turns, as owe suit, to the same turn,\nwhereof every one hath lands or freehold to the yearly value of\nten shillings, or copyhold lands to the yearly value of thirteen\nshillings four pence, above all charges within any of the said\ncounties, or men of less livelihood, if there be not so many\nthere, not withstanding the statute of 1 Richard III., ch. 4. To\nendure to the next parliament.\"   11 Henry VII., ch. 24. (1494.)\nThis statute was continued in force by 19 Henry VII., ch. 16\n(1503.)\n\nIn 1531 it was enacted, \"That every person or person being the\nking's natural subject born, which either by the name of citizen,\nor of a freeman, or any other name, doth enjoy and use the\nliberties and privileges of any city, borough, or town corporate,\nwhere he dwelleth and maketh his abode, being worth in moveable\ngoods and substance to the clear value of forty pounds, be\nhenceforth admitted in trials of murders and felonies in every\nsessions and gaol delivery, to be kept and holden in and for the\nliberty of such cities, boroughs, and towns corporate, albeit they\nhave no freehold; any act, statute, use, custom, or ordinance to\nthe contrary hereof notwithstanding.\"   23 Henry VIII., ch. 13.\n(1531.)\n\nIn 1585 it was enacted, \"That in all cases where any jurors to be\nreturned for trial of any issue or issues joined in any of the\nQueen's majesty's courts of King's Bench, Common Pleas, and the\nExchequer, or before judices of assize, by the laws of this realm\nnow in force, ought to have estate of freehold in lands,\ntenements, or hereditaments, of the clear yearly value of forty\nshillings, that in every such case the jurors that shall be\nreturned from and after the end of this present session of\nparliament, shall every of them have estate of freehold in lands,\ntenements, or hereditaments, to the clear yearly value of four\npounds at the least.\"   27 Elizabeth, ch. 6. (1585.)\n\nIn 1664-5 it was enacted \"That all jurors (other than strangers\nupon trials per medietatem linquae) who are to be returned for the\ntrials of issues joined in any of (his) majesty's courts of king's\nbench, common pleas, or the exchequer, or before justices of\nassize, nisi prius, oyer and terminer, gaol delivery, or general\nor quarter sessions of the peace from and after the twentieth day\nof April, which shall be in the year of our Lord one thousand six\nhundred and sixty-five, in any county of this realm of England,\nshall every of them then have, in their own name, or in trust for\nthem, within the same county, twenty pounds, by the year, at\nleast, above reprises, in their own or their wives right, of\nfreehold lands, or of ancient demesne, or of rents in fee,\nfee-tail, or for life. And that in every county within the\ndominion of Wales every such juror shall then have, within the\nsome, eight pounds by the year, at the least, above reprises, in\nmanner aforesaid. All which persons having such estate as\naforesaid are hereby enabled and made liable to be returned and\nserve as jurors for the trial of issues before the justices\naforesaid, any law or statute to the contrary in any wise\nnotwithstanding,\"   16 and 17 Charles II., ch. 5. (1664-5,)\n\nBy a statute passed in 1692, jurors in England are to have landed\nestates of the value of ten pounds a year, and jurors in Wales to\nhave similar estates of the realm of six pounds a year.   4 and 5\nWilliam and Mary, ch. 24, sec. 14, (1692,)\n\nBy the same statute, (sec. 18,) persons may be returned to serve\nupon the tales in any county of England, who shall have within the\nsame county, five pounds by the year, above reprises, in the\nmanner aforesaid.\n\nBy St. 3 George II., ch. 25, sec. 10, 20, no one is to be a juror\nin London, who shall not be \"an householder within the said city,\nand have lands, tenements, or personal estate, to the value of one\nhundred pounds.\"\n\nBy another statute, applicable only to the county of Middlesex, it\nis enacted, \"That all leaseholders, upon leases where the improved\nrents or value shall amount to fifty pounds or upwards per annum,\nover and above all ground rents or other reservations payable by\nvirtue of the said leases, shall be liable and obliged to serve\nupon juries when they shall be legally summoned for that\npurpose.,\"   4 George II., ch. 7, sec, 3. (1731.)\n\n[5] A mark was thirteen shillings and four pence.\n\n[6] Suppose these statutes, instead of disfranchising all whose\nfreeholds were of less than the standard value fixed by the\nstatutes, had disfranchised all whose freeholds were of greater\nvalue than the same standard   would anybody ever have doubted\nthat such legislation was inconsistent with the English\nconstitution; or that it amounted to an entire abolition of the\ntrial by jury? Certainly not. Yet it was as clearly inconsistent\nwith the common law, or the English constitution, to disfranchise\nthose whose freeholds fell below any arbitrary standard fixed by\nthe government, as it would have been to disfranchise all whose\nfreeholds rose above that standard.\n\n[7] Lingard says: \"These compurgators or jurors * * were\nsometimes * * drawn by lot.\"   1 Lingard's History of England,\np. 300.\n\n[8] Chapter 4, p. 120, note.\n\n[9] Editor's Note: (The following was not in Spooner's addition)\nWith the ratification of Article XIX  of amendment to the\nConstitution for the United States, August 20, 1920, women were\nfully enfranchised with all rights of voting and jury service in all states\nof the Union.\n\n\nCHAPTER VII. ILLEGAL JUDGES\n\nIT is a principle of Magna Carta, and therefore of the trial by\njury, (for all parts of Magna Carta must be construed together,)\nthat no judge or other officer appointed by the king, shall\npreside in jury trials, in criminal cases, or \"pleas of the\ncrown.\"\n\nThis provision is contained in the great charters of both John\nand Henry, and is second in importance only to the provision\nguaranteeing the trial by jury, of which it is really a part.\nConsequently, without the observance of this prohibition, there\ncan be no genuine or legal   that is, common law   trial by jury.\nAt the common law, all officers who held jury trials, whether in\ncivil or criminal cases, were chosen by the people. [1]\n\nBut previous to Magna Carta, the kings had adapted the practice\nof sending officers of their own appointment, called justices,\ninto the counties, to hold jury trials in some cases; and Magna\nCarta authorizes this practice to be continued so far as it\nrelates to three kinds of civil actions, to wit: \"novel\ndisseisin, mort de ancestor, and darrein presentment;\" [2] but\nspecially forbids its being extended to criminal cases, or pleas\nof the crown.\n\nThis prohibition is in these words:\n\n\"Nullus vicecomes, constabularius, coronator, vel alii balivi\nnostri, teneant placita coronae nostrae.\" (No sheriff, constable,\ncoroner, or other our bailiffs, shall hold pleas of our crown.)\nJohn's Charter, ch. 53, Henry's ditto, ch. 17.\n\nSome persons seem to have supposed that this was a prohibition\nmerely upon officers bearing the specific names of \"sheriffs,\nconstables, coroners and bailiffs,\"  to hold criminal trials. But\nsuch is not the meaning. If it were, the name could be changed,\nand the thing retained; and thus the prohibition be evaded. The\nprohibition applies (as will presently be seen) to all officers\nof the king whatsoever; and it sets up a distinction between\nofficers of the king,  (\"our bailiffs,\") and officers chosen by\nthe people.\n\nThe prohibition upon the king's justices sitting in criminal\ntrials, is included in the words \"vel alii balivi nostri,\" (or\nother our bailiffs.) The word  bailif was anciently a sort of\ngeneral name for judicial officers and persons employed in and\nabout the administration of justice. In modern times its use, as\napplied to the higher grades of judicial officers, has been\nsuperseded by other words; and it therefore now, more generally,\nif not universally, signifies an executive or police officer, a\nservant of courts, rather than one whose functions are purely\njudicial.\n\nThe word is a French word, brought into England by the Normans.\n\nCoke says, \"Baylife is a French word, and signifies an officer\nconcerned in the administration of justice of a certain province;\nand because a sheriff hath an office concerning the\nadministration of justice within his county, or bailiwick,\ntherefore be called his county baliva sua, (his bailiwick.)\n\n\"I have heard great question made what the true exposition of\nthis word balivus is. In the statute of Magna Carta, cap. 28, the\nletter of that statute is, nullus balivus de eaetero ponat\naliqnem ad legem manifestam nec ad juramentum simplici loquela\nsua sine testibus fidelibus ad hoc inductis.\" (No bailiff from\nhenceforth shall put any one to his open law, nor to an oath {of\nself-exculpation) upon his own simple accusation, or complaint,\nwithout faithful witnesses brought in for the same.) \"And some\nhave said that balivus in this statute signifieth any judge; for\nthe law must be waged and made before the judge. And this statute\n(say they) extends to the courts of common pleas, king's bench,\n&c;., for they must bring with them fideles testes, (faithful\nwitnesses,) &c;., and so hath been the usage to this day.\"   1\nCoke's Inst., 168 b.\n\nCoke makes various references, in his margin to Bracton, Fleta,\nand other authorities, which I have not examined, but which, I\npresume, support the opinion expressed in this quotation.\n\nCoke also, in another place, under the head of the chapter just\ncited from Magna Carta, that \"no bailiff shall put any man to his\nopen law,\" &c;., gives the following commentary upon it, from the\nMirror of Justices, from which it appears that in the time of\nEdward I., (1272 to 1307,) this word balivus was understood to\ninclude all judicial, as well as all other, officers of the king.\n\nThe Mirror says: \"The point which forbiddeth that no bailiff put\na freeman to his oath without suit, is to be understood in this\nmanner,   that no justice, no minister of the king, nor other\nsteward, nor bailiff, have power to make a freeman make oath, (of\nself-exculpation,) without the king's command, [3] nor receive\nany plaint, without witnesses present who testify the plaint to\nbe true.\"   Mirror of Justices, ch. 5, sec. 2, p. 257.\n\nCoke quotes this commentary, (in the original French,) and then\nendorses it in these words:\n\n\"By this it appeareth, that under this word balivus, in this act,\nis comprehended every justice, minister of the king, steward, and\nbailiff.\"   2 Inst., 44.\n\nCoke also, in his commentary upon this very chapter of Magna\nCarta, that provides that \"no sheriff; constable; coroner, or\nother our bailiffs, shall hold pleas of our crown,\" expresses the\nopinion that it \"is a general law,\" (that is, applicable to all\nofficers of the king,) \" by reason of the words vel alii balivi\nnostri, (or other our bailiffs,) under which words are\ncomprehended all judges or justices of any courts of justice.\n\"And he cites a decision in the king's bench, in the 17th year of\nEdward I., (1289,) as authority; which decision he calls \"a\nnotable and leading judgment.\"   2 Inst., 30   1.\n\nAnd yet Coke, in flat contradiction of this decision, which he\nquotes with such emphasis and approbation, and in flat\ncontradiction also of the definition he repeatedly gives of the\nword balivus showing that it embraced all ministers of the king\nwhatsoever, whether high or low, judicial or executive,\nfabricates an entirely gratuitous interpretation of this chapter\nof Magna Carta, and pretends that after all it only required that\nfelonies should he tried before the king's justices, on account\nof their superior Iearning; and that it permitted all lesser\noffenses to be tried before inferior officers, (meaning of course\nthe king's inferior officers.)   2 Inst., 30.\n\nAnd thus this chapter of Magna Carta, which, according to his own\ndefinition of the word balivus, applies to all officers of the\nking; and which, according to the common and true definition of\nthe term \"pleas of the crown,\" applies to all criminal cases\nwithout distinction, and which, therefore, forbids any officer or\nminister of the king to preside in a jury trial in any criminal\ncase whatsoever, he coolly and gratuitously interprets into a\nmere senseless provision for simply restricting the discretion of\nthe king in giving names to his own officers who should preside\nat the trials of particular offences; as if the king, who made\nand unmade all his officers by a word, could not defeat the whole\nobject of the prohibition, by appointing such individuals as he\npleased, to try such causes as he pleased, and calling them by\nsuch names as he pleased, if he were but permitted to appoint and\nname such officers at all; and as if it were of the least\nimportance what name an officer bore, whom the king might\nappoint to a particular duty. [4]\n\nCoke evidently gives this interpretation solely because, as he\nwas giving a general commentary on Magna Carta, he was bound\nto\ngive some interpretation or other to every chapter of it; and for\nthis chapter he could invent, or fabricate, (for it is a sheer\nfabrication,) no interpretation better suited to his purpose than\nthis. It seems never to have entered his mind, (or if it did, he\nintended that it should never enter the mind of anybody else,)\nthat the object of the chapter could be to deprive the king of\nthe power of putting his creatures into criminal courts, to pack,\ncheat, and browbeat juries, and thus maintain his authority by\nprocuring the conviction of those who should transgress his laws,\nor incur his displeasure.\n\nThis example of Coke tends to show how utterly blind, or how\nutterly corrupt, English judges, (dependent upon the crown and\nthe legislature), have been in regard to everything in Magna\nCarta, that went to secure the liberties of the people, or limit\nthe power of the government.\n\nCoke's interpretation of this chapter of Magna Carta is of a\npiece with his absurd and gratuitous interpretation of the words\n\"nec super eum ibimus, nec super eum mittemus,\" which was\npointed\nout in a former article, and by which he attempted to give a\njudicial power to the king and his judges, where Magna Carta had\ngiven it only to a jury. It is also of a piece with his pretence\nthat there was a difference between fine and amercement, and that\nfines might be imposed by the king, and that juries were required\nonly for fixing amercements.\n\nThese are some of the innumerable frauds by which the English\npeople have been cheated out of the trial by jury.\n\nEx uno disce omnes. From one judge learn the characters of all.\n[6]\n\nI give in the note additional and abundant authorities for the\nmeaning ascribed to the word bailiff. The importance of the\nprinciple involved will be a sufficient excuse for such an\naccumulation of authorities as would otherwise be tedious and\nperhaps unnecessary. [7]\n\nThe foregoing interpretation of the chapter of Magna Carta now\nunder discussion, is corroborated by another chapter of Magna\nCarta, which specially provides that the king's justices shall\n\"go through every county\" to \"take the assizes\" (hold jury\ntrials) in three kinds of civil actions, to wit, \"novel\ndisseisin, mort de ancestor, and darrein presentment;\" but makes\nno mention whatever of their holding jury trials in criminal cases,\nan omission wholly unlikely to be made, if it were designed\nthey should attend the trial of such causes. Besides, the here\nspoken of (in John's charter) does not allow these justices to\nsit alone in jury trials, even in civilactions; but provides that\nfour knights, chosen by the county, shall sit with them to keep\nthem honest.  When the king's justices  were known to be so\ncorrupt and  servile that the people would not even trust them\nto sit alone,  in jury trials, in civil actions, how preposterous is\nit to suppose  that they would not only suffer them to sit, but to\nsit alone, in criminal ones.\n\nIt is entirely incredible that Magna Carta, which makes such\ncareful provision in regard to the king's justices sitting in\ncivil actions, should make no provision whatever as to their\nsitting in criminal trials, if they were to be allowed to sit in\nthem at all. Yet Magna Carta has no provision whatever on the\nsubject. [10]\n\nBut what would appear to make this matter ahsolute1y certain is,\nthat unless the prohibition that \"no bailiff, &c;., of ours shall\nhold pleas of our crown,\" apply to all officers of the king,\njustices as well as others, it would be wholly nugatory for any\npractical or useful purpose, because the prohibition could be\nevaded by the king, at any time, by simply changing the titles of\nhis officers. Instead of calling them \"sheriffs, coroners,\nconstables and bailiffs,\" he could call them \"justices,\" or\nanything else he pleased; and this prohibition, so important to\nthe liberty of the people, would then be entirely defeated. The\nking also could make and unmake \"justices\" at his pleasure; and\nif he could appoint any officers whatever to preside over juries\nin criminal trials, he could appoint any tool that he might at\nany time find adapted to his purpose. It was as easy to make\njustices of Jeffreys and Scroggs, as of any other material; and\nto have prohibited all the king's officers, except his justices,\nfrom presiding in criminal trials, would therefore have been mere\nfool's play.\n\nWe can all perhaps form some idea, though few of us will be\nlikely to form any adequate idea, of what a different thing the\ntrial by jury would have been in practice, and of what would have\nbeen the difference to the liberties of England, for five hundred\nyears last past, had this prohibition of Magna Carta, upon the\nking's officers sitting in the trial of criminal cases, been\nobserved.\n\nThe principle of this chapter of Magna Carta, as applicable to\nthe governments of the United States of America, forbids that any\nofficer appointed either by the executive or legislative power,\nor dependent upon them for their salaries, or responsible to them\nby impeachment, should preside over a jury in criminal trials. To\nhave the trial a legal (that is, a common law) and true trial by\njury, the presiding officers must be chosen by the people, and be\nentirely free from all dependence upon, and all accountability\nto, the executive and legislative branches of the government.\n[12]\n\n[1] The proofs of this principle of the common law have already\nbeen given on page 120, note.\n\nThere is much confusion and contradiction among authors as to\nthe manner in which sheriffs and other officers were appointed; some\nmaintaining that they were appointed by the king, others that\nthey were elected by the people. I imagine that both these\nopinions are correct, and that several of the king's officers\nbore the same official names as those chosen by the people; and\nthat this is the cause of the confusion that has arisen on the\nsubject.\n\nIt seems to be a perfectly well established fact that, at common\nlaw, several magistrates, bearing the names of aldermen, sheriff,\nstewards, coroners and bailiffs, were chosen by the people; and\nyet it appears, from Magna Carta itself, that some of the king's\nofficers (of whom he must have had many) were also called\n\"sheriffs, constables, coroners, and bailiffs.\"\n\nBut Magna Carta, in various instances, speaks of sheriffs and\nbailiffs as \"our sheriff's and bailiffs;\" thus apparently\nintending to recognize the distinction between officers of the\nking, bearing those names, and other officers, bearing the same\nofficial names, but chosen by the people. Thus it says that \"no\nsheriff or bailiff of ours, or any other (officer), shall take\nhorses or carts of any freeman for carriage, unless with the\nconsent of the freeman himself.\"   John's Charter, ch. 36.\n\nIn a kingdom subdivided into so many counties, hundreds,\ntithings, manors, cities and boroughs, each having a judicial or\npolice organization of its own, it is evident that many of the\nofficers must have been chosen by the people, else the government\ncould not have mainlined its popular character. On the other\nhand, it is evident that the king, the executive power of the\nnation, must have had large numbers of officers of his own in\nevery part of the kingdom. And it is perfectly natural that these\ndifferent sets of officers should, in many instances, bear the\nsame official names; and, consequently that the king, when\nspeaking of his own officers, as distinguished, from those chosen\nby the people, should call them \"our sheriffs, bailiffs,\" &c;, as\nhe does in Magna Carta.\n\nI apprehend that inattention to these considerations has been the\ncause of all the confusion of ideas that has arisen on this\nsubject,  a confusion very evident in the following paragraph\nfrom Dunham, which may be given as an illustration of that which\nis exhibited by others on the same points.\n\n\"Subordinate to the ealdormen were the gerefas, the sheriffs, or\nreeves, of whom there were several in every shire, or county.\nThere was one in every borough, as a judge. There was one at\nevery gate, who witnessed purchases outside the walls; and there\nwas one, higher than either,  the high sheriff,  who was probably\nthe reeve of the shire. This last appears to have been appointed\nby the king. Their functions were to execute the decrees of the\nking, or ealdormen, to arrest prisoners, to require bail for\ntheir appearance at the sessions, to collect fines or penalties\nlevied by the court of the shire, to preserve the public peace,\nand to preside in a subordinate tribunal of their own.\"\nDurham's Middle Ages, sec. 2, B. 2, ch. 1.  - 57 Lardner's Cab.\nCyc., p 41.\n\nThe confusion of duties attributed to these officers indicates\nclearly enough that different officers, bearing the same official\nnames, must have had different duties, and have derived their\nauthority from different sources, to wit, the king, and the\npeople.\n\n[2] Darrein presentement  was an inquest to discover who\npresented the last person to a church; mort de ancestor, whether\nthe last possessor was seized of land in demesne of his own fee;\nand novel disseisin, whether the claimant had been unjustly\ndisseized of his freehold.\n\n[3] He has no power to do it, either with, or without, the king's\ncommand. The prohibition is absolute, containing no such\nqualification as is here interpolated, viz., \"without the king's\ncommand.\" If it could be done with the king's command, the king\nwould be invested with arbitrary power in the matter.\n\n[4] The absurdity of this doctrine of Coke is made more apparent\nby the fact that, at that time, the \"justices\" and other persons\nappointed by the king to hold courts were not only dependent upon\nthe king for their offices, and removable at his pleasure, but\nthat the usual custom was, not to appoint them with any view to\npermanency, but only to give them special commissions for trying\na single cause, or for holding a single term of a court, or for\nmaking a single circuit; which, being done, their commissions\nexpired. The king, therefore, could, and undoubtedly did, appoint\nany individual he pleased, to try any cause he pleased, with a\nspecial view to the verdicts he desired to obtain in the\nparticular cases.\n\nThis custom of commissioning particular persons to hold jury\ntrials, in criminal cases, (and probably also in civil ones,) was\nof course a usurpation upon the common law, but had been\npractised more or less from the time of William the Conqueror.\nPalgrave says:\n\n\"The frequent absence of William from his insular dominions\noccasioned another mode of administration, which ultimately\nproduced still greater changes in the law. It was the practice of\nappointing justiciars to represent the king's person, to hold his\ncourt, to decide his pleas, to dispense justice on his behalf, to\ncommand the military levies, and to act as conservators of the\npeace in the king's name. [5] .. The justices who were assigned\nin the name of the sovereign, and whose powers were revocable at\nhis pleasure, derived their authority merely from their grant...\nSome of those judges were usually deputed for the purpose of\nrelieving the king from the burden of his judicial functions...\nThe number as well as the variety of names of the justices\nappearing in the early chirographs of 'Concords,' leave reason\nfor doubting whether, anterior to the reign of Henry III., (1216\nto 1272,) a court, whose members were changing at almost every\nsession, can be said to have been permanently constituted. It\nseems more probable that the individuals who composed the\ntribunal were selected as suited the pleasure of the sovereign,\nand the convenience of the clerks and barons; and the history of\nour legal administration will be much simplified, if we consider\nall those courts which were afterwards denominated the\nExchequer, the King's Bench, the Common Pleas, and the Chancery,\nas being originally committees, selected by the king when occasion\nrequired, out of a large body, for the despatch of peculiar\nbranches of business, and which committees, by degrees, assumed\nan independent and permanent existence... Justices itinerant,\nwho, despatched throughout the land, decided the ' Pleas of the\nCrown,' may be obscurely traced in the reign of the Conqueror;\nnot, perhaps, appointed with much regularity, but despatched upon\npeculiar occasions and emergencies.\"   1 Palgrave's Rise and\nProgress, &c;., p. 289 to 293.\n\nThe following statute, passed in 1354, (139 years after Magna\nCarta,) shows that even after this usurpation of appointing\n\"justices \" of his own, to try criminal cases, had probably\nbecome somewhat established in practice, in defiance of Magna\nCarta, the king was in the habit of granting special commissions\nto still other persons, (especially to sheriffs,   his sheriffs,\nno doubt,) to try particular cases:\n\n\"Because that the people of the realm have suffered many evils\nand mischiefs, for that sheriffs of divers counties, by virtue of\ncommissions and general writs granted to them at their own suit,\nfor their singular profit to gain of the people, have made and\ntaken divers inquests to cause to indict the people at their\nwill, and have taken fine and ransom of them to their own use,\nand have delivered them; whereas such persons indicted were not\nbrought before the king's justices to have their deliverance, it\nis accorded and established, for to eschew all such evils and\nmischiefs, that such commissions and writs before this time made\nshall be utterly repealed, and that from henceforth no such\ncommissions shall be granted.\"   St. 28 Edward III., ch. 9,\n(1354.)\n\nHow silly to suppose that the illegality of these commissions to\ntry criminal eases, could have been avoided by simply granting\nthem to persons under the title of \"justices,\" instead of\ngranting them to \"sheriffs.\" The statute was evidently a cheat,\nor at least designed as such, inasmuch as it virtually asserts\nthe right of the king to appoint his tools, under the name of\n\"justices,\" to try criminal cases, while it disavows his right to\nappoint them under the name of \"sheriffs.\"\n\nMillar says: \"When the king's bench came to have its usual\nresidence at Westminster, the sovereign was induced to grant\nspecial commissions, for trying particular crimes, in such parts\nof the country as were found most convenient; and this practice\nwas gradually modeled into a regular appointment of certain\ncommissioners, empowered, at stated seasons, to perform circuits\nover the kingdom, and to hold courts in particular towns, for the\ntrial of all sorts of crimes. These judges of the circuit,\nhowever, never obtained an ordinary jurisdiction, but continued,\non every occasion, to derive their authority from two special\ncommissions: that of oyer and terminer, by which they were\nappointed to hear and determine all treasons, felonies and\nmisdemeanors, within certain districts; and that of gaol\ndelivery, by which they were directed to try every prisoner\nconfined in the gaols of the several towns falling under their\ninspection.\"   Millar's Hist. View of Eng. Gov., vol. 2, ch. 7,\np. 282.\n\nThe following extract from Gilbert shows to what lengths of\nusurpation the kings would sometimes go, in their attempts to get\nthe judicial power out of the hands of the people, and entrust it\nto instruments of their own choosing:\n\n\"From the time of the Saxons,\" (that is, from the commencement\nof the reign of William the Conqueror,) \"till the reign of Edward\nthe first, (1272 to 1307,) the several county courts and sheriffs\ncourts did decline in their interest and authority. The methods\nby which they were broken were two-fold. First, by granting\ncommissions to the sheriffs by writ of JUSTICIES, whereby the\nsheriff had a particular jurisdiction granted him to be judge of\na particular cause, independent of the suitors of the county\ncourt,\" (that is, without a jury;) \"and these commissions were\nafter the Norman form, by which (according to which) all power of\njudicature was immediately derived from the king.\"   Gilbert on\nthe Court of Chancery, p. l.\n\nThe several authorities now given show that it was the custom of\nthe Norman kings, not only to appoint persons to sit as judges in\njury trials, in criminal cases, but that they also commissioned\nindividuals to sit in singular and particular eases, as occasion\nrequired; and that they therefore readily could, and naturally\nwould, and therefore undoubtedly did, commission individuals\nwith a special view to their adaptation or capacity to procure such\njudgments as the kings desired.\n\nThe extract from Gilbert suggests also the usurpation of the\nNorman kings, in their assumption that they, (and not the people,\nas by the common law,) were the fountains of justice. It was only\nby virtue of this illegal assumption that they could claim to\nappoint their tools to hold courts.\n\nAll these things show how perfectly lawless and arbitrary the\nkings were, both before and after Magna Carta, and how necessary\nto liberty was the principle of Magna Carta and the common law,\nthat no person appointed by the king should hold jury trials in\ncriminal cases.\n\n[5] In this extract, Palgrave seems to assume that the king\nhimself had a right to sit as judge, in jury trials, in the\ncounty courts, in both civil and criminal cases. I apprehend he\nhad no such power at the common law, but only to sit in the trial\nof appeals, and in the trial of peers, and of civil suits in\nwhich peers were parties, and possibly in the courts of ancient\ndemesne.\n\n[6] The opinions and decisions of judges and courts are\nundeserving of the least reliance, (beyond the intrinsic merit of\nthe arguments offered to sustain them,) and are unworthy even to\nbe quoted as evidence of the law, when those opinions or\ndecisions are favorable to the power of the government, or\nunfavorable to the liberties of the people. The only reasons that\ntheir opinions, when in favor of liberty, are entitled to any\nconfidence, are, first, that all presumptions of law are in favor\nof liberty; and, second, that the admissions of all men, the\ninnocent and the criminal alike, when made against their own\ninterests, are entitled to be received as true, because it is\ncontrary to human nature for a man to confess anything but truth\nagainst himself.\n\nMore solemn farces, or more gross impostures, were never\npractised upon mankind, than are all, or very nearly all, those\noracular responses by which courts assume to determine that\ncertain statutes, in restraint of individual liberty, are within\nthe constitutional power of the government, and are therefore\nvalid and binding upon the people.\n\nThe reason why these courts are so intensely servile and corrupt,\nis, that they are not only parts of, but the veriest creatures\nof, the very governments whose oppressions they are thus seeking\nto uphold. They receive their offices and salaries from, and are\nimpeachable and removable by, the very governments upon whose\nacts they affect to sit in judgment. Of course, no one with his\neyes open ever places himself in a position so incompatible with\nthe liberty of declaring his honest opinion, unless he do it with\nthe intention of becoming a mere instrument in the hands of the\ngovernment for the execution of all its oppressions.\n\nAs proof of this, look at the judicial history of England for the\nlast five hundred years, and of America from its settlement. In\nall that time (so far as I know, or presume) no bench of judges,\n(probably not even any single judge,) dependent upon the\nlegislature that passed the statute, has ever declared a single\npenal statute invalid, on account of its being in conflict either\nwith the common law, which the judges in England have been\nsworn to preserve, or with the written constitutions, (recognizing\nmen's natural rights,) which the American judges were under oath\nto maintain. Every oppression, every atrocity even, that has ever\nbeen enacted in either country, by the legislative power, in the\nshape of a criminal law, (or, indeed, in almost any other shape,)\nhas been as sure of a sanction from the judiciary that was\ndependent upon, and impeachable by, the legislature that enacted\nthe law, as if there were a physical necessity that the\nlegislative enactment and the judicial sanction should go\ntogether. Practically speaking, the sum of their decisions, all\nand singular, has been, that there are no limits to the power of\nthe government, and that the people have no rights except what\nthe government pleases to allow to them.\n\nIt is extreme folly for a people to allow such dependent,\nservile, and perjured creatures to sit either in civil or\ncriminal trials; but to allow them to sit in criminal trials, and\njudge of the people's liberties, is not merely fatuity,   it is\nsuicide.\n\n[7] Coke, speaking of the word bailiffs, as used in the statute\nof 1 Westminster, ch. 35, (1275,) says:\n\n\"Here bailiffs are taken for the judges of the court, as\nmanifestly appeareth hereby.\"   2 Inst., 229.\n\nCoke also says, ' It is a maxim in law, aliguis non debet esse\njudex in propria causa, (no one ought to be judge in his own\ncause;) and therefore a fine levied before the baylifes of Salopwas\nreversed, because one of the baylifes was party to the fine,\nquia non potest esse judex et pars,\" (because one cannot be judge\nand party.)   1 Inst., 141 a.\n\nIn the statute of Gloucester, ch. 11 and 12, (1278,) \"the mayor\nand bailiffs of London (undoubtedly chosen by the people, or at\nany rate not appointed by the king) are manifestly spoken of as\njudges, or magistrates, holding jury trials, as follows:\n\nCh. II. \"It is provided, also, that if any man lease his tenement\nin the city of London, for a term of years, and he to whom the\nfreehold belongeth causeth himself to be impleaded by collusion,\nand maketh default after default, or cometh into court and giveth\nit up, for to make the termor (lessee) lose his term, (lease,)\nand the demandant hath his suit, so that the termor may recover\nby writ of covenant; the mayor and bailiffs may inquire by a good\ninquest, (jury,) in the presence of the termor and the demandant,\nwhether the demandant moved his plea upon good right that he\nhad,\nor by collusion, or fraud, to make the termor lose his term; and\nif it be found by the inquest (jury) that the demandant moved his\nplea upon good right that he had, the judgment shall be given\nforthwith; and if it be found by the inquest (jury) that he\nimpleaded him (self ) by fraud, to put the termor from his term,\nthen shall the termor enjoy his term, and the execution of\njudgment for the demandant shall be suspended until the term be\nexpired.\"   4 Edward I., ch. 11, (1278.)\n\nCoke, in his commentary on this chapter, calls this court of \"the\nmayor and bailiffs\" of London, \" the court of the hustings, the\ngreatest and highest court in London;\" and adds, \"other cities\nhave the like court, and so called, as York, Lincoln, Winchester,\n&e;. Here the city of London is named; but it appeareth by that\nwhich hath been said out of Fleta, that this act extends to such\ncities and boroughs privileged,   that is, such as have such\nprivilege to hold plea as London hath.\"   2 Inst., 322.\n\nThe 12th chapter of the same statute is in the following words,\nwhich plainly recognize the fact that \" the mayor and bailiffs of\nLondon\" are judicial officers holding courts in London.\n\n\"It is provided, also, that if a man, impleaded for a tenement in\nthe same city, (London,) doth vouch a foreigner to warranty, that\nhe shall come into the chancery, and have a writ to summon his\nwarrantor at a certain day before the justices of the beach, and\nanother writ to the mayor and bailiff of London, that they shall\nsurcease (suspend proceedings) in the matter that is before them\nby writ, until the plea of the warrantee be determined before the\njustices of the bench; and when the plea at the bench shall be\ndetermined, then shall he that is vouched be commanded to go into\nthe city,\" (that is, before \"the mayor and bailiffs \" court,) \"to\nanswer unto the chief plea; and a writ shall be awarded at the\nsuit of the demandant by the justices unto the mayor and\nbailiffs, that they shall proceed in the plea,\" &c;.   6 Edward\nI., ch. 12, (1278.)\n\nCoke, in his commentary on this chapter, also speaks repeatedly\nof \"the mayor and bailiffs\" as judges holding courts, and also\nspeaks of this chapter as applicable not only to \"the citie of\nLondon, specially named for the cause aforesaid, but extended by\nequity to all other privileged places,\" (that is, privileged to\nhave a court of \"mayor and bailiffs,\") \"where foreign voucher is\nmade, as to Chester, Durham, Salop,\" &e;.   2 Inst., 325   7.\n\nBAILIE.   In Scotch law, a municipal magistrate, corresponding\nwith the English alderman.[8]   Burrill's Law Dictionary.\n\nBAILLIFFE  Baillif. Fr. A bailiff: a ministerial officer with\nduties similar to those of a sheriff. * * The judge of a court. A\nmunicipal magistrate, &c;.   Burrill's Law Dict.\n\nBAILIFF - The word bailiff is of Norman origin, and was applied\nin England, at an early period, (after the example, it is said,\nof the French,) to the chief magistrates of counties, or shires,\nsuch as the alderman, the reeve, or sheriff, and also of inferior\njurisdictions, such as hundreds and wapentakes.   Spelman, voc.\nBalivus; 1 Bl. Com.,344. See Bailli, Ballivus. The Latin ballivus\noccurs, indeed, in the laws of Edward the Confessor, but Spelman\nthinks it was introduced by a later hand. Balliva (bailiwick) was\nthe word formed from ballivus, to denote the extent of territory\ncomprised within a bailiff's jurisdiction; and bailiwick is still\nretained in writs and other proceedings, as the name of a\nsheriff's county.   1 Bl. Com., 344. See Balliva. The office of\nbailiff was at first strictly, though not exclusively, a judicial\none. In France, the word had the sense of what Spelman calls\njustitia tutelaris. Ballivus occurs frequently in the Regiam\nMajestatem, in the sense of a judge.   Spelman. In its sense of a\ndeputy, it was formerly applied, in England, to those officers\nwho, by virtue of a deputation, either from the sheriff or the\nlords of private jurisdictions, exercised within the hundred, or\nwhatever might be the limits of their bailiwick, certain judicial\nand ministerial functions. With the disuse of private and local\njurisdictions, the meaning of the term became commonly restricted\nto such persons as were deputed by the sheriff to assist him in\nthe merely ministerial portion of his duty; such as the summoning\nof juries, and the execution of writs.   Brande.. The word\nbailiff is also applied in England to the chief magistrates of\ncertain towns and jurisdictions, to the keepers of castles,\nforests and other places, and to the stewards or agents of lords\nof manors.   Burrill's Law Dict.\n\n\"BAILIFF, (from the Lat. ballivus; Fr. baillif, i. e., Praefectus\nprovinciae,) signifies an officer appointed for the\nadministration of justice within a certain district. The office,\nas well as the name, appears to have been derived from the\nFrench,\" &c;.   Brewster's Encyclopedia.\n\nMillar says, \"The French monarchs, about this period, were not\ncontent with the power of receiving appeals from the several\ncourts of their barons. An expedient was devised of sending royal\nbailiffs into different parts of the kingdom, with a commission\nto take cognizance of all those causes in which the sovereign was\ninterested, and in reality for the purpose of abridging and\nlimiting the subordinate jurisdiction of the neighboring feudal\nsuperiors. By an edict of Phillip Augustus, in the year 1190,\nthose bailiffs were appointed in all the principal towns of the\nkingdom.\"   Millar's Hist. View of the Eng. Gov., vol. ii., ch.\n8, p. 126.\n\n\"BAILIFF- office.   Magistrates who formerly administered justice\nin the parliaments or courts of France, answering to the English\nsheriffs, as mentioned by Bracton.\"   Bouvier's Law Dict.\n\n\"There be several officers called bailiffs, whose offices and\nemployments seem quite different from each other... The chief\nmagistrate, in divers ancient corporations, are called bailiffs,\nas in Ipswich, Yarmouth, Colchester, &c;. There are, likewise,\nofficers of the forest, who are termed bailiffs.\"   1 Bacon's\nAbridgment, 498   9.\n\n\" BAILIFF signifies a keeper or superintendent, and is directly\nderived from the French word bailli, which appears to come from\nthe word balivus, and that from bagalus, a Latin word signifying\ngenerally a governor, tutor, or superintendent... The French word\nbailli is thus explained by Richelet, (Dictionaire, &e;.:)\nBailli.  He who in a province has the superintendence of justice,\nwho is the ordinary judge of the nobles, who is their head for\nthe ban and arriere ban, [9] and who maintains the right and\nproperty of others against those who attack them... All the\nvarious officers who are called by this name, though differing as\nto the nature of their employments, seem to have some kind of\nsuperintendence intrusted to them by their superior.\"   Political\nDictionary.\n\n\" BAILIFF, balivus. From the French word bayliff, that is,\npraefectus provinciae, and as the name, so the office itself was\nanswerable to that of France, where there were eight parliaments,\nwhich were high courts from whence there lay no appeal, and\nwithin the precincts of the several parts of that kingdom which\nbelonged to each parliament, there were several provinces to\nwhich justice was administered by certain officers called\nbailiffs; and in England we have several counties in which\njustice hath been, and still is, in small suits, administered to\nthe inhabitants by the officer whom we now call sheriff, or\nviscount; (one of which names descends from the Saxons, the\nother from the Normans.) And, though the sheriff is not called\nbailiff, yet it was probable that was one of his names also, because\nthe county is often called balliva; as in the return of a writ, where\nthe person is not arrested, the sheriff saith, infra-nominatus,\nA. B. non est inventus in balliva mea, &c;.; (the within named A.\nB. is not found in my bailiwick, &c;.) And in the statute of\nMagna Carta, ch. 28, and 14 Ed. 8, ch. 9, the word bailiff seems\nto comprise as well sheriffs, as bailiffs of hundreds.\n\nBAILIES, in Scotland, are magistrates of burghs, possessed of\ncertain jurisdictions, having the same power within their\nterritory as sheriffs in the county.\n\nAs England is divided into counties, so every county is divided\ninto hundreds; within which, in ancient times, the people had\njustice administered to them by the several officers of every\nhundred, which were the bailiffs. And it appears by Bracton,\n(lib. 3, tract. 2, ch. 34,) that bailiffs of hundreds might\nanciently hold plea of appeal and approvers; but since that time\nthe hundred courts, except certain franchises, are swallowed in\nthe county courts; and now the bailiff's name and office is grown\ninto contempt, they being generally officers to serve writs,\n&c;., within their liberties; though, in other respects, the name\nis still in good esteem, for the chief magistrates in divers\ntowns are called bailiffs; and sometimes the persons to whom the\nking's castles are committed are termed bailiffs, as the bailiffof\nDover Castle, &c;.,\n\n\"Of the ordinary bailiffs there are several sorts, viz., bailiffsof\nliberties; sheriffs' bailiffs; bailiffs of lords of manors; bailiffs of\nhusbandry, &c;.\n\n\"Bailiffs of liberties or franchises are to be sworn to take\ndistresses, truly impanel jurors, make returns by indenture\nbetween them and sheriffs, &c;.\n\n\"Bailiffs of courts baron summon those courts, and execute the\nprocess thereof. \" Besides these, there are also bailiffs of the\nforest... \"  Jacob's Law Dict. Tomlin's do.\n\n\"BAILIWICK, balliva,   is not only taken for the county, but\nsignifies generally that liberty which is exempted from the\nsheriff of the county, over which the lord of the liberty\nappointeth a bailiff, with such powers within his precinct as an\nunder-sheriff exerciseth under the sheriff of the county; such as\nthe bailiff of Westminster.\"   Jacob's Law Dict. Tomlin's do.\n\n\"A bailiff of a Leet, Court-baron, Manor, Balivus Letae, Baronis,\nManerii.   He is one that is appointed by the lord, or his\nsteward, within every manor, to do such offices as appertain\nthereunto, as to summon the court, warn the tenants and resiants;\nalso, to summon the Leet and Homage, levy fines, and make\ndistresses, &c;., of which you may read at large in Kitchen's\nCourt-leet and Court-baron.\"   A Law Dictionary, anonymous, (in\nSuffolk Law Library.)\n\n\"Bailliff   In England an officer appointed by the sheriff.\nBailiff's are either special, and appointed, for their\nadroitness, to arrest persons; or bailiffs of hundreds, who\ncollect fines, summon juries, attend the assizes, and execute\nwrits and processes, The sheriff in England is the king's\nbailiff.\n\n\"The office of bailiff formerly was high and honorable in\nEngland, and officers under that title on the continent are still\ninvested with important functions.\"   Webster.\n\n\"BAILLI, (Scotland.)   An alderman; a magistrate who is second in\nrank in a royal burgh.\"   Worcester.\n\n\"Baili, or Bailiff.   (Sorte d'officier de justice.) A bailiff; a\nsort of magistrate.\"   Boyer's French Dict.\n\n\"By some opinions, a bailiff, in Magna Carta, ch. 28, signifies\nany judge.\"   Cunningham's Law Dict.\n\n\"BAILIFF.   In the court of the Greek emperors there was a grand\nbajulos, first tutor of the emperor's children. The\nsuperintendent of foreign merchants seems also to have been\ncalled bajulos; and, as he was appointed by the Venetians, this\ntitle (balio) was transferred to the Venetian ambassador. From\nGreece, the official bajulos (ballivus, bailli, in France;\nbailiff, in England,) was introduced into the south of Europe,\nand denoted a superintendent; hence the eight ballivi of the\nknights of St. John, which constitute its supreme council. In\nFrance, the royal bailiffs were commanders of the militia,\nadministrators or stewards of the domains, and judges of their\ndistricts. In the course of time, only the first duty remained to\nthe bailiff; hence he was bailli d'epee, and laws were\nadministered in his name by a lawyer, as his deputy, lieutenant\nde robe. The seigniories, with which high courts were connected,\nemployed bailiffs, who thus constituted, almost everywhere, the\nlowest order of judges. From the courts of the nobility, the\nappellation passed to the royal courts; from thence to the\nparliaments. In the greater bailiwicks of cities of importance,\nHenry II. established a collegial constitution under the name of\npresidial courts... The name of bailiff was introduced into\nEngland with William I. The counties were also called bailiwicks,\n(bailivae,) while the subdivisions were called hundreds, but, as\nthe courts of the hundreds have long since ceased, the English\nbailiffs are only a kind of subordinate officers of justice, like\nthe French huissiers. These correspond very nearly to the\nofficers called constables in the United States. Every sheriff\nhas someof them under him, for whom he is answerable. In some\ncities the highest municipal officer yet bears this name, as the\nhigh bailiff of Westminster. In London, the Lord Mayor is at the\nsame time bailiff; (which title he bore before the present became\nusual,) and administers, in this quality, the criminal\njurisdiction of the city, in the court of old Bailey, where there\nare, annually, eight sittings of the court, for the city of\nLondon and the county of Middlesex. Usually, the recorder of\nLondon supplies his place as judge. In some instances the term\nbailiff, in England, is applied to the chief magistrates of\ntowns, or to the commanders of particular castles, as that of\nDover. The term baillie, in Scotland, is applied to a judicial\npolice-officer, having powers very similar to those of justices\nof peace in the United States.\"   Encyclopaedia Americana.\n\n[8] Alderman was a title anciently given to various judicial officers,\nas the Alderman of all England, Alderman of the King, Alderman\nof the County, Alderman of the City or Borough, alderman of the\nHundred or Wapentake. These were all judicial officers. See Law\nDictionaries.\n\n[9] \"Ban and arriere ban, a proclamation, whereby all that hold\nlands of the crown, (except some privileged officers and\ncitizens,) are summoned to meet at a certain place in order to\nserve the king in his wars, either personally, or by proxy.\"\nBoyer.\n\n[10] Perhaps it may be said (and such, it has already been seen,\nis the opinion of Coke and others) that the chapter of Magna\nCarta, that \"no bailiff from henceforth shall put any man to his\nopen law, (put him on trial,) nor to an oath (that is, an oath of\nself- exculpation) upon his (the bailiff's) own accusation or\ntestimony, without credible witnesses brought in to prove the\ncharge,\" is itself a \" provision in regard to the king's justices\nsitting in criminal trials,\" and therefore implies that they areto sit\nin such trials.\n\nBut, although the word bailiff includes all judicial, as well as\nother, officers, and would therefore in this case apply to the\nking's justices, if they were to sit in criminal trials; yet this\nparticular chapter of Magna Carta evidently does not contemplate\n\"bailiffs\" while acting in their judicial capacity, (for they\nwere not allowed to sit in criminal trials at all,) but only in\nthe character of witnesses, and that the meaning of the chapter\nis, that the simple testimony (simplici loquela) of \"no bailiff,\"\n(of whatever kind,) unsupported by other and \"credible\nwitnesses,\" shall be sufficient to put any man on trial, or to\nhis oath of self-exculpation.\" [11]\n\nIt will be noticed that the words of this chapter are not, \"no\nbailiff of ours,\"   that is, of the king,   as in some other\nchapters of Magna Carta; but simply \"no bailiff,\"&c;. The\nprohibition, therefore, applied to all \"bailiffs,\"   to those\nchosen by the people, as well as those appointed by the king. And\nthe prohibition is obviously founded upon the idea (a very sound\none in that age certainly, and probably also in this) that public\nofficers (whether appointed by king or people) have generally, or\nat least frequently, too many interests and animosities against\naccused persons, to make it, safe to convict any man on their\ntestimony alone.\n\nThe idea of Coke and others, that the object of this chapter was\nsimply to forbid magistrates to put a man on trial, when there\nwere no witnesses against him, but only the simple accusation or\ntestimony of the magistrates themselves, before whom he was to\nbe tried, is preposterous; for that would be equivalent to supposing\nthat magistrates acted in the triple character of judge, jury and\nwitnesses, in the same trial; and that, therefore, in such case,\nthey needed to be prohibited from condemning a man on their own\naccusation or testimony alone. But such a provision would have\nbeen unnecessary and senseless, for two reasons; first, because\nthe bailiffs or magistrates had no power to \"hold pleas of the\ncrown,\" still less to try or condemn a man; that power resting\nwholly with the juries; second, because if bailiffs or\nmagistrates could try and condemn a man, without a jury, the\nprohibition upon their doing so upon their own accusation or\ntestimony alone, would give no additional protection to the\naccused, so long as these same bailiffs or magistrates were\nallowed to decide what weight should be given, both to their own\ntestimony and that of other witnesses, for, if they wished to\nconvict, they would of course decide that any testimony, however\nfrivolous or irrelevant, in addition to their own, was sufficient.\nCertainly a magistrate could always procure witnesses\nenough to testify to something or other, which he himself could\ndecide to be corroborative of his own testimony. And thus the\nprohibition would be defeated in fact, though observed in form.\n\n[11] At the common law, parties, in both civil and criminal\ncases, were allowed to swear in their own behalf; and it will be\nso again, if the true trial by jury should be reestablished.\n\n[12] In this chapter I have called the justices \"presiding\nofficers,\" solely for the want of a better term. They are not\n\"presiding officers,\" in the sense of having any authority over\nthe jury; but are only assistants to, and teachers and servants\nof, the jury. The foreman of the jury is properly the \"Presiding\nOfficer,\" so far as there is such an officer at all. The sheriff\nhas no authority except over other persons than the jury.\n\n\nCHAPTER VIII. THE FREE ADMINISTRATION OF JUSTICE\n\nThe  free administration of justice was a principle of the common\nlaw; and it must necessarily be a part of every system of\ngovernment which is not designed to be an engine in the hands of\nthe rich for the oppression of the poor.\n\nIn saying that the free administration of justice was a principle\nof the common law, I mean only that parties were subjected to no\ncosts for jurors, witnesses, writs, or other necessaries for the\ntrial, preliminary to the trial itself. Consequently, no one\ncould lose the benefit of a trial, for the want of means to\ndefray expenses. But after the trial, the plaintiff or defendant\nwas liable to be amerced, (by the jury, of course,) for having\ntroubled the court with the prosecution or defence of an unjust\nsuit.\n\n[1] But it is not likely that the losing party was subjected to\nan amercement as a matter of course, but only in those cases\nwhere the injustice of his cause was so evident as to make him\ninexcusable in bringing it before the courts.\n\nAll the freeholders were required to attend the courts, that they\nmight serve as jurors and witnesses, and do any other service\nthat could legally be required of them; and their attendance was\npaid for by the state. In other words, their attendance and\nservice at the courts were part of the rents which they paid the\nstate for their lands.\n\nThe freeholders, who were thus required always to attendthe\ncourts, were doubtless the only witnesses who were usually\nrequired in civil causes. This was owing to the fact that, in\nthose days, when the people at large could neither write nor\nread, few contracts were put in writing. The expedient adopted\nfor proving contracts, was that of making them in the presence of\nwitnesses, who could afterwards testify to the transactions. Most\ncontracts in regard to lands were made at the courts, in the\npresence of the freeholders there assembled. [2]\n\nIn the king's courts it was specially provided by Magna Carta\nthat \"justice and right\" should not be \"sold;\" that is, that the\nking should take nothing from the parties for administering\njustice.\n\nThe oath of a party to the justice of his cause was all that was\nnecessary to entitle him to the benefit of the courts free of all\nexpense; (except the risk of being amerced after the trial, in\ncase the jury should think he deserved it. [3])\n\nThis principle of the free administration of justice connects\nitself necessarily with the trial by jury, because a jury could\nnot rightfully give judgment against any man, in either a civil\nor criminal case, if they had any reason to suppose he had been\nunable to procure his witnesses.\n\nThe true trial by jury would also compel the free administration\nof justice from another necessity, viz., that of preventing\nprivate quarrels; because, unless the government enforced a man's\nrights and redressed his wrongs, free of expense to him, a jury\nwould be bound to protect him in taking the law into his own\nhands. A man has a natural right to enforce his own rights and\nredress his own wrongs. If one man owe another a debt, and refuse\nto pay it, the creditor has a natural right to seize sufficient\nproperty of the debtor, wherever he can find it, to satisfy the\ndebt. If one man commit a trespass upon the person, property or\ncharacter of another, the injured party has a natural right,\neither to chastise the aggressor, or to take compensation for the\ninjury out of his property. But as the government is an impartial\nparty as between these individuals, it is more likely to do\nexactjustice between them than the injured individual himself would\ndo. The government, also, having more power at its command, is\nlikely to right a man's wrongs more peacefully than the injured\nparty himself could do it. If, therefore, the government will do\nthe work of enforcing a man's rights, and redressing his wrongs,\npromptly, and free of expense to him, he is under a moral\nobligation to leave the work in the hands of the government; but\nnot otherwise. When the government forbids him to enforce his\nown rights or redress his own wrongs, and deprives him of all means\nof obtaining justice, except on the condition of his employing\nthe government to obtain it for him, and of paying the government\nfor doing it, the government becomes itself the protector and\naccomplice of the wrong-doer. If the government will forbid a man\nto protect his own rights, it is bound, to do it for him, free of\nexpense to him. And so long as government refuses to do this,\njuries, if hey knew their duties, would protect a man in\ndefending his own rights.\n\nUnder the prevailing system, probably one half of the community\nare virtually deprived of all protection for their rights, except\nwhat the criminal law affords them. Courts of justice, for all\ncivil suits, are as effectually shut against them, as though it\nwere done by bolts and bars. Being forbidden to maintain their\nown rights by force,   as, for instance, to compel the payment of\ndebts,  and being unable to pay the expenses of civil suits,\nthey have no alternative but submission to many acts of\ninjustice, against which the government is bound either to\nprotect them, free of expense, or allow them to protect\nthemselves.\n\nThere would be the same reason in compelling a party to pay the\njudge and jury for their services, that there is in compelling\nhim to pay the witnesses, or any other necessary charges. [4]\n\nThis compelling parties to pay the expenses of civil suits is one\nof the many cases in which government is false to the fundamental\nprinciples on which free government is based. What is the object\nof government, but to protect men's rights? On what principle\ndoes a man pay his taxes to the government, except on that of\ncontributing his proportion towards the necessary cost of\nprotecting the rights of all? Yet, when his own rights are\nactually invaded, the government, which he contributes to\nsupport, instead of fulfilling its implied contract, becomes his\nenemy, and not only refuses to protect his rights, (except at his\nown cost,) but even forbids him to do it himself.\n\nAll free government is founded on the theory of voluntary\nassociation; and on the theory that all the parties to it\nvoluntarily pay their taxes for its support, on the condition of\nreceiving protection in return. But the idea that any poor man\nwould voluntarily pay taxes to build up a government, which will\nneither protect his rights, (except at a cost which he cannot\nmeet,) nor suffer himself to protect them by such means as may be\nin his power, is absurd.\n\nUnder the prevailing system, a large portion of the lawsuits\ndetermined in courts, are mere contests of purses rather than of\nrights. And a jury, sworn to decide causes \"according to the\nevidence\" produced, are quite likely, for aught they themselves\ncan know, to be deciding merely the comparative length of the\nparties' purses, rather than the intrinsic strength of their\nrespective rights. Jurors ought to refuse to decide a cause at\nall, except upon the assurance that all the evidence, necessary\nto a full knowledge of the cause, is produced. This assurance\nthey can seldom have, unless the government itself produces all\nthe witnesses the parties desire.\n\nIn criminal cases, the atrocity of accusing a man of crime, and\nthen condemning him unless he prove his innocence at his own\ncharges, is so evident that a jury could rarely, if ever, be\njustified in convicting a man under such circumstances.\n\nBut the free administration of justice is not only indispensable\nto the maintenance of right between man and man; it would also\npromote simplicity and stability in the laws. The mania for\nlegislation would be, in an important degree, restrained, if the\ngovernment were compelled to pay the expenses of all the suits\nthat grew out of it.\n\nThe free administration of justice would diminish and nearly\nextinguish another great evil,   that of malicious civil suits It\nis an old saying, that \"multi litigant in foro, non ut aliquid\nlucentur, sed ut vexant alios.\" (Many litigate in court, not that\nthey may gain anything, but that they may harass others.) Many\nmen, from motives of revenge and oppression, are willing to spend\ntheir own money in prosecuting a groundless suit, if they can\nthereby compel their victims, who are less able than themselves\nto bear the loss, to spend money in the defence. Under the\nprevailing system, in which the parties pay the expenses of their\nsuits, nothing but money is necessary to enable any malicious man\nto commence and prosecute a groundless suit, to the terror,\ninjury, and perhaps ruin, of another man. In this way, a court of\njustice, into which none but a conscientious plaintiff certainly\nshould ever be allowed to enter, becomes an arena into which any\nrich and revengeful oppressor may drag any man poorer than\nhimself, and harass, terrify, and impoverish him, to almost any\nextent. It is a scandal and an outrage, that government should\nsuffer itself to be made an instrument, in this way, for the\ngratification of private malice. We might nearly as well have no\ncourts of justice, as to throw them open, as we do, for such\nflagitious uses. Yet the evil probably admits of no remedy except\na free administration of justice. Under a free system, plaintiffs\ncould rarely be influenced by motives of this kind; because they\ncould put their victim to little or no expense, neither pending\nthe suit, (which it is the object of the oppressor to do,) nor at\nits termination. Besides, if the ancient common law practice\nshould be adopted, of amercing a party for troubling the courts\nwith groundless suits, the prosecutor himself would, in the end,\nbe likely to be amerced by the jury, in such a manner as to make\ncourts of justice a very unproitable place for a man to go to\nseek revenge.\n\nIn estimating the evils of this kind, resulting from the present\nsystem, we are to consider that they are not, by any means,\nconfined to the actual suits in which this kind of oppression is\npractised; but we are to include all those cases in which the\nfear of such oppression is used as a weapon to compel men into a\nsurrender of their rights.\n\n[1] 2 Sullivan Lectures, 234-5. 3 Blackstone, 274-5, 376. Sullivan\nsays that both plaintiff's and defendants were liable to\namercement. Blackstone speaks of plaintiffs being liable, without\nsaying whether defendants were so or not. What the rule really\nwas I do not know. There would seem to be some reason in\nallowing defendants to defend themselves, at their own charges,\nwithout exposing themselves to amercement in case of failure.\n\n[2] When any other witnesses than freeholders were required in a\ncivil suit, I am not aware of the manner in which their\nattendance was procured; but it was doubtless done at the expense\neither of the state or of the witnesses themselves. And it was\ndoubt less the same in criminal cases.\n\n[3] \"All claims were established in the first stage by the oath\nof the plaintiff, except when otherwise specially directed by the\nlaw. The oath, by which any claim was supported, was called the\nfore-oath, or ' Praejuramentum,' and it was the foundation of his\nsuit. One of the cases which did not require this initiatory\nconfirmation, was when cattle could be tracked into another man's\nland, and then the foot-mark stood for the fore-oath.\"   2\nPalgrave's Rise and Progress, &c;., 114.\n\n[4] Among the necessary expenses of suits, should be reckoned\nreasonable compensation to counsel, for they are nearly or quite\nas important to the administration of justice, as are judges,\njurors, or witnesses; and the universal practice of employing\nthem, both on the part of governments and of private persons,\nshows that their importance is generally understood. As a mere\nmatter of economy, too, it would be wise for the government to\npay them, rather than they should not be employed; because they\ncollect and arrange the testimony and the law beforehand, so as\nto be able to present the whole case to the court and jury\nintelligibly, and in a short space of time. Whereas, if they were\nnot employed, the court and jury would be under the necessity\neither of spending much more time than now in the investigation\nof causes, or of despatching them in haste, and with little\nregard to justice. They would be very likely to do the latter,\nthus defeating the whole object of the people in establishing\ncourts.\n\nTo prevent the abuse of this right, it should perhaps be left\ndiscretionary with the jury in each case to determine whether the\ncounsel should receive any pay   and, if any, how much   from the\ngovernment.\n\n\nCHAPTER IX. THE CRIMINAL INTENT\n\nIt is a maxim of the common law that there can be no crime\nwithout a criminal intent. And it is a perfectly clear principle,\nalthough one which judges have in a great measure overthrown in\npractice, that jurors are to judge of the moral intent of an\naccused person, and hold him guiltless, whatever his act, unless\nthey find him to have acted with a criminal intent; that is, with\na design to do what he knew to be criminal.\n\nThis principle is clear, because the question for a jury to\ndetermine is, whether the accused be guilty, or not guilty. Guiltis a\npersonal quality of the actor,  not necessarily involved in\nthe act, but depending also upon the intent or motive with which\nthe act was done. Consequently, the jury must find that he acted\nfrom a criminal motive, before they can declare him guilty.\n\nThere is no moral justice in, nor any political necessity for,\npunishing a man for any act whatever that he may have committed,\nif he have done it without any criminal intent. There can be no\nmoral justice in punishing for such an act, because, there having\nbeen no criminal motive, there can have been no other motive\nwhich justice can take cognizance of, as demanding or justifying\npunishment. There can be no political necessity for punishing, to\nwarn against similar acts in future, because, if one man have\ninjured another, however unintentionally, he is liable, and\njustly liable, to a civil suit for damages; and in this suit he\nwill be compelled to make compensation for the injury,\nnotwithstanding his innocence of any intention to injure. He must\nbear the consequences of his own act, instead of throwing them\nupon another, however innocent he may have been of any intention\nto do wrong. And the damages he will have to pay will be a\nsufficient warning to him not to do the like act again.\n\nIf it be alleged that there are crimes against the public, (as\ntreason, for example, or any other resistance to government,) for\nwhich private persons can recover no damages, and that there is a\npolitical necessity for punishing for such offences, even though\nthe party acted conscientiously, the answer is,   the government\nmust bear with all resistance that is not so clearly wrong as to\ngive evidence of criminal intent. In other words, the government,\nin all its acts, must keep itself so clearly within the limits of\njustice, as that twelve men, taken at random, will all agree that\nit is in the right, or it must incur the risk of resistance,\nwithout any power to punish it. This is the mode in which the\ntrial by jury operates to prevent the government from falling\ninto the hands of a party, or a faction, and to keep it within\nsuch limits as all, or substantially all, the people are agreed\nthat it may occupy.\n\nThis necessity for a criminal intent, to justify conviction, is\nproved by the issue which the jury are to try, and the verdict\nthey are to pronounce. The \"issue\" they are to try is, \"guilty,\"or\n\"not guilty.\" And those are the terms they are required to use\nin rendering their verdicts. But it is a plain falsehood to say\nthat a man is \"guilty,\" unless he have done an act which he knew\nto be criminal.\n\nThis necessity for a criminal intent   in other words, for guilt\nas a preliminary to conviction, makes it impossible that a man\ncan be rightfully convicted for an act that is intrinsically\ninnocent, though forbidden by the government; because guilt is an\nintrinsic quality of actions and motives, and not one that can be\nimparted to them by arbitrary legislation. All the efforts of the\ngovernment, therefore, to \"make offences by statute,\" out of acts\nthat are not criminal by nature, must necessarily be ineffectual,\nunless a jury will declare a man \"guilty\" for an act that is\nreally innocent.\n\nThe corruption of judges, in their attempts to uphold the\narbitrary authority of the government, by procuring the\nconviction of individuals for acts innocent in themselves, and\nforbidden only by some tyrannical statute, and the commission of\nwhich therefore indicates no criminal intent, is very apparent.\n\nTo accomplish this object, they have in modern times held it to\nbe unnecessary that indictments should charge, as by the common\nlaw they were required to do, that an act was done \"wickedly,\"\n\"feloniously,\" \"with malice aforethought,\" or in any other manner\nthat implied a criminal intent, without which there can be no\ncriminality; but that it is sufficient to charge simply that it\nwas done \" contrary to the form of the statute in such case made\nand provided.\" This form of indictment proceeds plainly upon the\nassumption that the government is absolute, and that it has\nauthority to prohibit any act it pleases, however innocent in its\nnature the act may be. Judges have been driven to the alternative\nof either sanctioning this new form of indictment, (which they\nnever had any constitutional right to sanction,) or of seeing the\nauthority of many of the statutes of the government fall to the\nground; because the acts forbidden by the statutes were so\nplainly innocent in their nature, that even the government itself\nhad not the face to allege that the commission of them implied or\nindicated any criminal intent.\n\nTo get rid of the necessity of showing a criminal intent, and\nthereby further to enslave the people, by reducing them to the\nnecessity of a blind, unreasoning submission to the arbitrary\nwill of the government, and of a surrender of all right, on their\nown part, to judge what are their constitutional and natural\nrights and liberties, courts have invented another idea, which\nthey have incorporated among the pretended maxims, upon which\nthey act in criminal trials, viz., that \"ignorance of the law\nexcuses no one.\" As if it were in the nature of things possible\nthat there could be an excuse more absolute and complete. What\nelse than ignorance of the law is it that excuses persons under\nthe years of discretion, and men of imbecile minds? What else\nthan ignorance of the law is it that excuses judges themselves\nfor all their erroneous decisions? Nothing. They are every day\ncommitting errors, which would be crimes, but for their ignorance\nof the law. And yet these same judges, who claim to be learned in\nthe law, and who yet could not hold their offices for a day, but\nfor the allowance which the law makes for their ignorance, are\ncontinually asserting it to be a \"maxim\" that \"ignorance of the\nlaw excuses no one;\" (by which, of course, they really mean that\nit excuses no one but themselves; and especially that it excuses\nno unlearned man, who comes before them charged with crime.)\n\nThis preposterous doctrine, that \"ignorance of the law excuses no\none,\" is asserted by courts because it is an indispensable one to\nthe maintenance of absolute power in the government. It is\nindispensable for this purpose, because, if it be once admitted\nthat the people have any rights and liberties which the\ngovernment cannot lawfully take from them, then the question\narises in regard to every statute of the government, whether it\nbe law, or not; that is, whether it infringe, or not, the rights\nand liberties of the people. Of this question every man must of\ncourse judge according to the light in his own mind. And no man\ncan be convicted unless the jury find, not only that the statute\nis law,   that it does not infringe the rights and liberties of\nthe people,   but also that it was so clearly law, so clearly\nconsistent with the rights and liberties of the people, as that\nthe individual himself, who transgressed it, knew it to be so,\nand therefore had no moral excuse for transgressing it.\nGovernments see that if ignorance of the law were allowed to\nexcuse a man for any act whatever, it must excuse him for\ntransgressing all statutes whatsoever, which he himself thinks\ninconsistent with his rights and liberties. But such a doctrine\nwould of course be inconsistent with the maintenance of arbitrary\npower by the government; and hence governments will not allow\nthe plea, although they will not confess their true reasons for\ndisallowing it.\n\nThe only reasons, (if they deserve the name of reasons), that I\never knew given for the doctrine that ignorance of the law\nexcuses no one, are these:\n\n1. \"The reason for the maxim is that of necessity. It prevails,\n'not that all men know the law, but because it is an excuse which\nevery man will make, and no man can tell how to confute him.'\nSelden, (as quoted in the 2d edition of Starkie on Slander,\nPrelim. Disc., p. 140, note.)\"   Law Magazine, (London,) vol. 27,\np. 97.\n\nThis reason impliedly admits that ignorance of the Law is,\nintrinsically, an ample and sufficient excuse for a crime; and\nthat the excuse ought to be allowed, if the fact of ignorance\ncould but be ascertained. But it asserts that this fact is\nincapable of being ascertained, and that therefore there is a\nnecessity for punishing the ignorant and the knowing   that is,\nthe innocent and the guilty   without discrimination.\nThis reason is worthy of the doctrine it is used to uphold; as if\na plea of ignorance, any more than any other plea, must\nnecessarily be believed simply because it is urged; and as if it\nwere not a common and every-day practice of courts and juries, in\nboth civil and criminal cases, to determine the mental capacity\nof individuals; as, for example, to determine whether they are of\nsufficient mental capacity to make reasonable contracts; whether\nthey are lunatic; whether they are compotes mentis, \"of sound\nmind and memory,\" &. &. And there is obviously no more\ndifficulty in a jury's determining whether an accused person knew\nthe law in a criminal case, than there is in determining any of these\nother questions that are continually determined in regard to a\nman's mental capacity. For the question to be settled by the jury\nis not whether the accused person knew the particular penalty\nattached to his act, (for at common law no one knew what penalty\na jury would attach to an offence,) but whether he knew that his\nact was intrinsically criminal. If it were intrinsically criminal,\nit was criminal at common law. If it was not intrinsically criminal,\nit was not criminal at common law. (At least, such was the general\nprinciple of the common law. There may have been exceptions in\npractice, owing to the fact that the opinions of men, as to what was\nintrinsically. criminal, may not have been in all cases correct.)\n\nA jury, then, in judging whether an accused person knew his act\nto be illegal, were bound first to use their own judgments, as to\nwhether the act were intrinsically criminal. If their own judgments\ntold them the act was intrinsically and clearlycriminal, they would\nnaturally and reasonably infer that the accused also understood that\nit was intrinsically criminal, (and consequently illegal,) unless it\nshould appear that he was either below themselves in the scale of\nintellect, or had had less opportunities of knowing what acts were\ncriminal. In short, they would judge, from any and every means they\nmight have of judging; and if they had any reasonable doubt that he\nknew his act to be criminal in itself, they would be bound to acquit\nhim.\n\nThe second reason that has been offered for the doctrine that\nignorance of the law excuses no one, is this:\n\n\"Ignorance of the municipal law of the kingdom, or of the penalty\nthereby inflicted on offenders, doth not excuse any that is of\nthe age of discretion and compos mentis, from the penalty of the\nbreach of it; because every person, of the age of discretion and\ncompos mentis, is bound to know the law, and presumed to do so.\n\"Ignorantia eorum,, quae quis scire tenetur non excusat.\"\n(Ignorance of those things which every one is bound to know, does\nnot excuse.)   1 Hale's Pleas of the Crown, 42. Doctor and\nStudent, Dialog. 2, ch. 46. Law Magazine, (London,) vol. 27, p.\n97.\n\nThe sum of this reason is, that ignorance of the law excuses no\none, (who is of the age of discretion and is compos mentis,)\nbecause every such person \"is bound to know the law.\" But this is\ngiving no reason at all for the doctrine, since saying that a man\n\"is bound to know the law,\" is only saying, in another form, that\n\"ignorance of the law does not excuse him.\" There is no\ndifference at all in the two ideas. To say, therefore, that\n\"ignorance of the law excuses no one, because every one is bound\nto know the law,\" is only equivalent to saying that \"ignorance of\nthe law excuses no one, because ignorance of the law excuses no\none.\" It is merely reasserting the doctrine, without giving any\nreason at all.\n\nAnd yet these reasons, which are really no reasons at all, are\nthe only ones, so far as I know, that have ever been offered for\nthis absurd and brutal doctrine.\n\nThe idea suggested, that \" the age of discretion\" determines the\nguilt of a person,   that there is a particular age, prior to which\nall persons alike should be held incapable of knowing any crime,\nand subsequent to which all persons alike should be held\ncapable of knowing all crimes,  is another of this most\nridiculous nest of ideas. All mankind acquire their knowledge of\ncrimes, as they do of other things, gradually. Some they learn at\nan early age; others not till a later one. One individual\nacquires a knowledge of crimes, as he does of arithmetic, at an\nearlier age than others do. And to apply the same presumption to\nall, on the ground of age alone, is not only gross injustice, but\ngross folly. A universal presumption might, with nearly or quite\nas much reason, be founded upon weight, or height, as upon age.\n[1]\n\nThis doctrine, that \"ignorance of the law excuses no one,\" is\nconstantly repeated in the form that \"every one is bound to know\nthe law.\" The doctrine is true in civil matters, especially in\ncontracts, so far as this: that no man, who has the ordinary capacity\nto make reasonable contracts, can escape the consequences of\nhis own agreement, on the ground that he did not know the law\napplicable to it. When a man makes a contract, he gives the other\nparty rights; and he must of necessity judge for himself, and take\nhis own risk, as to what those rights are,  otherwise the contract\nwould not be binding, and men could not make contracts that\nwould convey rights to each other. Besides, the capacity to make\nreasonable contracts,\n\nimplies and includes a capacity to form a reasonable judgment as\nto the law applicable to them. But in criminal matters, where the\nquestion is one of punishment, or not; where no second party has\nacquired any right to have the crime punished, unless it were\ncommitted with criminal intent, (but only to have it compensated\nfor by damages in a civil suit,\") and when the criminal intent is\nthe only moral justification for the punishment, the principle\ndoes not apply, and a man is bound to know the law only as well\nas he reasonably may. The criminal law requires neither\nimpossibilities nor extraordinaries of any one. It requires only\nthoughtfulness and a good conscience. It requires only that a man\nfairly and properly use the judgment he possesses, and the means\nhe has of learning his duty. It requires of him only the same\ncare to know his duty in regard to the law, that he is morally\nbound to use in other matters of equal importance. And this care\nit does require of him. Any ignorance of the law, therefore, that\nis unnecessary, or that arises from indifference or disregard of\none's duty, is no excuse. An accused person, therefore, may be\nrightfully held responsible for such a knowledge of the law as is\ncommon to men in general, having no greater natural capacities\nthan himself, and no greater opportunities for learning the law.\nAnd he can rightfully be held to no greater knowledge of the law\nthan this. To hold him responsible for a greater knowledge of the\nlaw than is common to mankind, when other things are equal,\nwould be gross injustice and cruelty. The mass of mankind can\ngive but little of their attention to acquiring a knowledge of the\nlaw. Their other duties in life forbid it. Of course, they cannot\ninvestigate abstruse or difficult questions. All that can\nrightfully be required of each of them, then, is that he exercise\nsuch a candid and conscientious judgment as it is common\nformankind generally to exercise in such matters. If he have done\nthis, it would be monstrous to punish him criminally for his\nerrors; errors not of conscience, but only of judgment. It would\nalso be contrary to the first principles of a free government\n(that is, a government formed by voluntary association) to punish\nmen in such cases, because it would be absurd to suppose that any\nman would voluntarily assist to establish or support a government\nthat would punish himself for acts which he himself did not know\nto be crimes. But a man may reasonably unite with his fellow-men\nto maintain a government to punish those acts which he himself\nconsiders criminal, and may reasonably acquiesce in his own\nliability to be punished for such acts. As those are the only\ngrounds on which any one can be supposed to render any voluntary\nsupport to a government, it follows that a government formed by\nvoluntary association, and of course having no powers except such\nas all the associates have consented that it may have, can have\nno power to punish a man for acts which he did not himself know\nto be criminal.\n\nThe safety of society, which is the only object of the criminal\nlaw, requires only that those acts which are understood by\nmankind at large to be intrinsically criminal, should he punished\nas crimes. The remaining few (if there are any) may safely be\nleft to go unpunished. Nor does the safety of society require\nthat any individuals, other than those who have sufficient mental\ncapacity to understand that their acts are criminal, should be\ncriminally punished. All others may safely be left to their\nliability, under the civil law, to compensate for their\nunintentional wrongs.\n\nThe only real object of this absurd and atrocious doctrine, that\n\"ignorance of the law (that is, of crime) excuses no one,\" and\nthat \"everyone is bound to know the criminal law,\" (that is,\nbound to know what is a crime,) is to maintain an entirely\narbitrary authority on the part of the government, and to deny to\nthe people all right to judge for themselves what their own\nrights and liberties are. In other words, the whole object of the\ndoctrine is to deny to the people themselves all right to judge\nwhat statutes and other acts of the government are consistent or\ninconsistent with their own rights and liberties; and thus to\nreduce the people to the condition of mere slaves to a despotic\npower, such as the people themselves would never have\nvoluntarily established, and the justice of whose laws the people\nthemselves cannot understand.\n\nUnder the true trial by jury all tyranny of this kind would be\nabolished. A jury would not only judge what acts were really\ncriminal, but they would judge of the mental capacity of an\naccused person, and of his opportunities for understand- ing the\ntrue character of his conduct. In short, they would judge of his\nmoral intent from all the circumstances of the case, and acquit\nhim, if they had any reasonable doubt that he knew that he was\ncommitting a crime. [2]\n\n[1] This presumption, founded upon age alone, is as absurd in\ncivil matters as in criminal. What can be more entirely ludicrous\nthan the idea that all men (not manifestly imbecile) become\nmentally competent to make all contracts whatsoever on the day\nthey become twenty-one years of age?   and that, previous to that\nday, no man becomes competent to make any contract whatever,\nexcept for the present supply of the most obvious wants of\nnature? In reason, a man's legal competency to make\nbinding contracts, in any and every case whatever, depends\nwholly upon his mental capacity to make reasonable contracts in\neach particular case. It of course requires more capacity to make a\nreasonable contract in some cases than in others. It requires,\nfor example, more capacity to make a reasonable contract in the\npurchase of a large estate, than in the purchase of a pair of\nshoes. But the mental capacity to make a reasonable contract, in\nany particular case, is, in reason, the only legal criterion of\nthe legal competency to make a binding contract in that case. The\nage, whether more or less than twenty-one years, is of no legal\nconsequence whatever, except that it is entitled to some\nconsideration as evidence of capacity.\n\nIt may be mentioned, in this connection, that the rules that\nprevail, that every man is entitled to freedom from parental\nauthority at twenty-one years of age, and no one before that age,\nare of the same class of absurdities with those that have been\nmentioned. The only ground on which a parent is ever entitled to\nexercise authority over his child, is that the child is incapable\nof taking reasonable care of himself. The child would be entitled\nto his freedom from his birth, if he were at that time capable of\ntaking reasonable care of himself. Some become capable of taking\ncare of themselves at an earlier age than others. And whenever\nany one becomes capable of taking reasonable care of himself, and\nnot until then, he is entitled to his freedom, be his age more or\nless.\n\nThese principles would prevail under the true trial by jury, the\njury being the judges of the capacity of every individual whose\ncapacity should be called in question.\n\n[2] In contrast to the doctrines of the text, it may be proper to\npresent more distinctly the doctrines that are maintained by\njudges, and that prevail in courts of justice. Of course, no\njudge, either of the present day, or perhaps within the last five\nhundred years, has admitted the right of a jury to judge of the\njustice of a law, or to hold any law invalid for its injustice.\nEvery judge asserts the power of the government to punish for\nacts that are intrinsically innocent, and which therefore involve\nor evince no criminal intent.  To accommodate the administration\nof law to this principle, all judges, so far as I am aware, hold\nit to be unnecessary that an indictment should charge, or that a\njury should find, that an act was done with a criminal intent,\nexcept in those cases where the act is malum in se,  criminal in\nitself. In all other cases, so far as I am aware, they hold it\nsufficient that the indictment charge, and consequently that the\njury find, simply that the act was done \" contrary to the form of\nthe statute in such case made and provided;\" in other words,\ncontrary to the orders of the government.\n\nAll these doctrines prevail universally among judges, and are, I\nthink, uniformly practised upon in courts of justice; and they\nplainly involve the most absolute despotism on the part of the\ngovernment.\n\nBut there is still another doctrine that extensively, and perhaps\nmost generally, prevails in practice, although judges are not\nagreed in regard to its soundness. It is this: that it is not\neven necessary that the jury should see or know, for themselves,\nwhat the law is that is charged to have been violated; nor to see\nor know, for themselves, that the act charged was in violation of\nany law whatever;   but that it is sufficient that they be simply\ntold by the judge that any act whatever, charged in an\nindictment, is in violation of law, and that they are then bound\nblindly to receive the declaration as true, and convict a man\naccordingly, if they find that he has done the act charged.\n\nThis doctrine is adopted by many among the most eminent judges,\nand the reasons for it are thus given by Lord Mansfield:\n\n\"They (the jury) do not know, and are not presumed to know, the\nlaw. They are not sworn to decide the law;\" [3] they are not\nrequired to do it... The jury ought not to assume the\njurisdiction of law. They do not know, and are not presumed to\nknow, anything of the matter. They do not understand the language\nin which it is conceived, or the meaning of the terms. They have\nno rule to go by but their passions and wishes.\"   8 Term Rep.,\n428, note.\n\nWhat is this but saying that the people, who are supposed to be\nrepresented in juries, and who institute and support the\ngovernment, (of course for the protection of their own rights and\nliberties, as they understand them, for plainly no other motive\ncan be attributed to them,) are really the slaves of a despotic\npower, whose arbitrary commands even they are not supposed\ncompetent to understand, but for the transgression of which they\nare nevertheless to be punished as criminals\n\nThis is plainly the sum of the doctrine, because the jury are the\npeers (equals) of the accused, and are therefore supposed to know\nthe law as well as he does, and as well as it is known by the\npeople at large. If they (the jury) are not presumed to know the\nlaw, neither the accused nor the people at large can be presumed\nto know it. Hence, it follows that one principle of the truetrial by\njury is, that no accused person shall be held responsible for any\nother or greater knowledge of the law than is common to his\npolitical equals, who will generally be men of nearly similar\ncondition in life. But the doctrine of Mansfield is, that the body\nof the people, from whom jurors are taken, are responsible to a\nlaw, which it is agreed they cannot understand. What is this but\ndespotism?   and not merely despotism, but insult and oppression\nof the intensest kind?\n\n[3] This declaration of Mansfield, that juries in England \"are\nnot sworn to decide the law\" in criminal cases, is a plain\nfalsehood. They are sworn to try the whole case at issue between\nthe king and the prisoner, and that includes the law as well as\nthe fact. See Jurors Oath, page 85.\n\nThis doctrine of Mansfield is the doctrine of all who deny the\nright of juries to judge of the law, although all may not choose\nto express it in so blunt and unambiguous terms. But the doctrine\nevidently admits of no other interpretation or defence.\n\n\nCHAPTER X. MORAL CONSIDERATIONS FOR JURORS\n\nTHE trial by jury must, if possible, be construed to be such that\na man can rightfully sit in a jury, and unite with his fellows in\ngiving judgment. But no man can rightfully do this, unless he\nhold in his own hand alone a veto upon any judgment or sentence\nwhatever to be rendered by the jury against a defendant, which\nveto he must be permitted to use according to his own discretion\nand conscience, and not bound to use according to the dictation\nof either legislatures or judges.\n\nThe prevalent idea, that a juror may, at the mere dictation of a\nlegislature or a judge, and without the concurrence of his own\nconscience or understanding, declare a man \"guilty,\" and thus in\neffect license the government to punish him; and that the\nlegislature or the judge, and not himself, has in that case all\nthe moral responsibility for the correctness of the principles on\nwhich the judgment was rendered, is one of the many gross\nimpostures by which it could hardly have been supposed that any\nsane man could ever have been deluded, but which governments\nhave nevertheless succeeded in inducing the people at large to receive\nand act upon.\n\nAs a moral proposition, it is perfectly self-evident that, unless\njuries have all the legal rights that have been claimed for them\nin the preceding chapters,   that is, the rights of judging what\nthe law is, whether the law be a just one, what evidence is\nadmissible, what weight the evidence is entitled to, whether an\nact were done with a criminal intent, and the right also to limit\nthe sentence, free of all dictation from any quarter,   they have\nno moral right to sit in the trial at all, and cannot do so\nwithout making themselves accomplices in any injustice that they\nmay have reason to believe may result from their verdict. It is\nabsurd to say that they have no moral responsibility for the use\nthat may be made of their verdict by the government, when they\nhave reason to suppose it will be used for purposes of injustice.\n\nIt is, for instance, manifestly absurd to say that jurors have no\nmoral responsibility for the enforcement of an unjust law, when\nthey consent to render a verdict of guilty for the transgression\nof it; which verdict they know, or have good reason to believe,\nwill be used by the government as a justification for inflicting\na penalty.\n\nIt is absurd, also, to say that jurors have no moral\nresponsibility for a punishment indicted upon a man against law,\nwhen, at the dictation of a judge as to what the law is, they\nhave consented to render a verdict against their own opinions of\nthe law.\n\nIt is absurd, too, to say that jurors have no moral\nresponsibility for the conviction and punishment of an innocent\nman, when they consent to render a verdict against him on the\nstrength of evidence, or laws of evidence, dictated to them by\nthe court, if any evidence or laws of evidence have been\nexcluded, which they (the jurors) think ought to have been\nadmitted in his defence.\n\nIt is absurd to say that jurors have no moral responsibility for\nrendering a verdict of \"guilty\" against a man, for an act which\nhe did not know to be a crime, and in the commission of which,\ntherefore, he could have had no criminal intent, in obedience to\nthe instructions of courts that \"ignorance of the law (that is,\nof crime) excuses no one.\"\n\nIt is absurd, also, to say that jurors have no moral\nresponsibility for any cruel or unreasonable sentence that may be\ninflicted even upon a guilty man, when they consent to render a\nverdict which they have reason to believe will be used by the\ngovernment as a justification for the infliction of such\nsentence.\n\nThe consequence is, that jurors must have the whole case in their\nhands, and judge of law, evidence, and sentence, or they incur\nthe moral responsibility of accomplices in any injustice which\nthey have reason to believe will be done by the government on the\nauthority of their verdict.\n\nThe same principles apply to civil cases as to criminal. If a\njury consent, at the dictation of the court, as to either law or\nevidence, to render a verdict, on the strength of which they have\nreason to believe that a man's property will be taken from him\nand given to another, against their own notions of justice, they\nmake themselves morally responsible for the wrong.\n\nEvery man, therefore, ought to refuse to sit in a jury, and to\ntake the oath of a juror, unless the form of the oath be such as\nto allow him to use his own judgment, on every part of the case,\nfree of all dictation whatsoever, and to hold in his own hand a\nveto upon any verdict that can be rendered against a defendant,\nand any sentence that can be inflicted upon him, even if he be\nguilty.\n\nOf course, no man can rightfully take an oath as juror, to try a\ncase \"according to law,\" (if by law be meant anything other than\nhis own ideas of justice,) nor \"according to the law and the\nevidence, as they shall be given him.\" Nor can he rightfully take\nan oath even to try a case \"according to the evidence,\" because\nin all cases he may have good reason to believe that a party has\nbeen unable to produce all the evidence legitimately entitled to\nbe received. The only oath which it would seem that a man can\nrightfully take as juror, in either a civil or criminal case, is,\nthat he \"will try the case according to his conscience.\" Of\ncourse, the form may admit of variation, but this should be the\nsubstance. Such, we have seen, were the ancient common law\noaths.\n\n\nCHAPTER XI. AUTHORITY OF MAGNA CARTA\n\nPROBABLY no political compact between king and people was\never\nentered into in a manner to settle more authoritatively the\nfundamental law of a nation, than was Magna Carta. Probably no\npeople were ever more united and resolute in demanding from\ntheir\nking a definite and unambiguous acknowledgment of their rights\nand liberties, than were the English at that time. Probably no\nking was ever more completely stripped of all power to maintain\nhis throne, and at the same time resist the demands of his\npeople, than was John on the 15th day of June, 1215. Probably no\nking every consented, more deliberately or explicitly, to hold\nhis throne subject to specific and enumerated limitations upon\nhis power, than did John when he put his seal to the Great\nCharter of the Liberties of England. And if any political compact\nbetween king and people was ever valid to settle the liberties of\nthe people, or to limit the power of the crown, that compact is\nnow to be found in Magna Carta. If, therefore, the constitutional\nauthority of Magna Carta had rested solely upon the compact of\nJohn with his people, that authority would have been entitled to\nstand forever as the supreme law of the land, unless revoked by\nthe will of the people themselves.\n\nBut the authority of Magna Carta does not rest alone upon the\ncompact with John. When, in the next year, (1216,) his son, Henry\nIII., came to the throne, the charter was ratified by him, and\nagain in 1217, and again in 1225, in substantially the same form,\nand especially without allowing any new powers, legislative,\njudicial, or executive, to the king or his judges, and without\ndetracting in the least from the powers of the jury. And from the\nlatter date to this, the charter has remained unchanged.\n\nIn the course of two hundred years the charter was confirmed by\nHenry and his successors more than thirty times. And although\nthey were guilty of numerous and almost continual breaches of it,\nand were constantly seeking to evade it, yet such were the\nspirit, vigilance and courage of the nation, that the kings held\ntheir thrones only on the condition of their renewed and solemn\npromises of observance. And it was not until 1429, (as will be\nmore fully shown hereafter,) when a truce between themselves,\nand\na formal combination against the mass of the people, had been\nentered into, by the king, the nobility, and the \"forty shilling\nfreeholders,\" (a class whom Mackintosh designates as \"a few\nfreeholders then accounted wealthy,\" [1]) by the exclusion of all\nothers than such freeholders from all voice in the election of\nknights to represent the counties in the House of Commons, that a\nrepetition of these confirmations of Magna Carta ceased to be\ndemanded. and obtained. [2]\n\nThe terms and the formalities of some of these \"confirmations\"\nmake them worthy of insertion at length.\n\nHume thus describes one which took place in the 38th year of\nHenry III. (1253):\n\n\" But as they (the barons) had experienced his (the king's)\nfrequent breach of promise, they required that he should ratify\nthe Great Charter in a manner still more authentic and solemn\nthan any which he had hitherto employed. All the prelates and\nabbots were assembled. They held burning tapers in their hands.\nThe Great Charter was read before them. They denounced the\nsentence of excommunication against every one who should\nthenceforth violate that fundamental law. They threw their tapers\non the ground, and exclaimed, May the soul of every one who\nincurs this sentence so stink and corrupt in hell! The king bore\na part in this ceremony, and subjoined, ' So help me God! I will\nkeep all these articles inviolate, as I am a man, as I am a\nChristian, as I am a knight, and as I am a king crowned and\nanointed.' \"   Hume, ch. 12. See also Blackstone's Introd. to the\nCharters. Black. Law Tracts, Oxford ed., p. 332. Makintosh's\nHist. of Eng., ch. 3. Lardner's Cab. Cyc., vol. 45, p. 233   4.\n\nThe following is the form of \"the sentence of excommunication\"\nreferred to by Hume:\n\n\"The Sentence of Curse, Given by the Bishops, against the\nBreakers of the Charters.\n\n\"The year of our Lord a thousand two hundred and fifty-three, the\nthird day of May, in the great Hall of the King at Westminster,\nin the presence, and by the assent, of the Lord Henry, by the\nGrace of God King of England, and the Lords Richard, Earl of\nCornwall, his brother, Roger (Bigot) Earl of Norfolk and\nSuffolk;, marshal of England, Humphrey, Earl of Hereford, Henry,\nEarl of Oxford, John, Earl of Warwick, and other estates of the\nRealm of England: We, Boniface, by the mercy of God Archbishop\nof\nCanterbury, Primate of all England, F. of London, H. of Ely, S.\nof Worcester, F. of Lincoln, W. of Norwich, P. of Hereford, W. of\nSalisbury, W. of Durham, R. of Exeter, M. of Carlisle, W. of\nBath, E. of Rochester, T. of Saint David's, Bishops, appareled in\nPontificals, with tapers burning, against the breakers of the\nChurch's Liberties, and of the Liberties or free customs of the\nRealm of England, and especially of those which are contained in\nthe Charter of the Common Liberties of the Realm, and the\nCharter\nof the Forest, have solemnly denounced the sentence of\nExcommunication in this form. By the authority of Almighty God,\nthe Father, the Son, and the Holy Ghost, and of the glorious\nMother of God, and perpetual Virgin Mary, of the blessed Apostles\nPeter and Paul, and of all apostles, of the blessed Thomas,\nArchbishop and Martyr, and of all martyrs, of blessed Edward of\nEngland, and of all Confessors and virgins, and of all the saints\nof heaven: We excommunicate, accurse, and from the thresholds\n(liminibus) of our Holy Mother the Church, We sequester, all\nthose that hereafter willingly and maliciously deprive or spoil\nthe Church of her right: And all those that by any craft or\nwiliness do violate, break, diminish, or change the Church's\nLiberties, or the ancient approved customs of the Realm, and\nespecially the Liberties and free Customs contained in the\nCharters of the Common Liberties, and of the Forest, conceded by\nour Lord the King, to Archbishops, Bishops, and other Prelates of\nEngland and likewise to the Earls, Barons, Knights, and other\nFreeholders of the Realm: And all that secretly, or openly, by\ndeed, word, or counsel, do make statutes, or observe them being\nmade, and that bring in Customs, or keep them when they be\nbrought in, against the said Liberties, or any of them, the\nWriters and Counselors of said statutes, and the Executors of\nthem, and a11 those that shall presume to judge according to\nthem. All and every which persons before mentioned, that\nwittingly shall commit anything of the premises, let them well\nknow that they incur the aforesaid sentence, ipso facto, (i. e..\nupon the deed being done.) And those that ignorantly do so, and\nbe admonished, except they reform themselves within fifteen days\nafter the time of the admonition, and make full satisfaction for\nthat they have done, at the will of the ordinary, shall be from\nthat time forth included in the same sentence. And with the same\nsentence we burden all those that presume to perturb the peace of\nour sovereign Lord the King, and of the Realm. To the perpetual\nmemory of which thing, We, the aforesaid Prelates, have put our\nseals to these presents.\"   Statutes of the Realm, vol. 1, p. 6.\nRuffhead's Statutes, vol. 1, p. 20.\n\nOne of the Confirmations of the Charters, by Edward I., was by\nstatute, in the 25th year of his reign, (1297,) in the following\nterms. The statute is usually entitled. \"Confirmatio\nCartarum,\"(Confirmation of the Charters.)\n\nCh. 1.  \"Edward, by the Grace of God, King of England, Lord of\nIreland, and Duke of Guyan, To all those that these presents\nshall hear or see, Greeting. Know ye, that We, to the honor of\nCod, and of Holy Church, and to the profit of our Realm, have\ngranted, for us and our heirs, that the Charter of Liberties, and\nthe Charter of the Forest, which were made by common assent of\nall the Realm, in the time of King Henry our Father, shall be\nkept in every point without breach. And we will that the same\nCharters shall be sent under our seal, as well to our justices of\nthe Forest, as to others, and to all Sheriff's of shires, and to\nall our other officers, and to all our cities throughout the\nRealm, together with our writs, in the which it shall he\ncontained, that they cause the aforesaid Charters to be\npublished, and to declare to the people that We have confirmed\nthem at all points; and to our Justices, Sheriffs, mayors, and\nother ministers, which under us have the Laws of our Land to\nguide, that they allow the same Charters, in all their points, in\npleas before them, and in judgment; that is, to wit, the Great\nCharter as the Common Law, and the Charter of the Forest for the\nwealth of our Realm.\n\nCh. 2. \"And we will that if any judgment be given from henceforth\ncontrary to the points of the charters aforesaid by the justices,\nor by any others our ministers that hold plea before them,\nagainst the points of the Charters, it shall be undone and holden\nfor naught.\n\nCh. 3. \"And we will, that the same Charters shall be sent, under\nour seal, to Cathedral Churches throughout our Realms there to\nremain, and shall be read before the people two times in the\nyear.\n\nCh. 4. \"And that all Archbishops and Bishops shall pronounce the\nsentence of excommunication against all those that by word, deed,\nor counsel, do contrary to the foresaid charters, or that in any\npoint break or undo them. And that the said Curses be twice a\nyear denounced and published by the prelates aforesaid. And if\nthe same prelates, or any of them, be remiss in the denunciation\nof the said sentences, the Archbishops of Canterbury and York-,\nfor the time being, shall compel and distrain them to make the\ndenunciation in the form aforesaid.\"   St. 25 Edward I., (1297.).\nStatutes of the Realm, vol. l, p. 123.\n\nIt is unnecessary to repeat the terms of the various\nconfirmations, most of which were less formal than those that\nhave been given, though of course equally authoritative. Most of\nthem are brief, and in the form of a simple statute, or promise,\nto the effect that \"The Great Charter, and the Charter of the\nForest, shall be firmly kept and maintained in all points.\" They\nare to be found printed with the other statutes of the realm. One\nof them, after having \"again granted, renewed and confirmed\" the\ncharters, requires as follows:\n\n\"That the Charters be delivered to every sheriff of England under\nthe king's seal, to be read four times in the year before the\npeople in the full county,\" (that is, at the county court,) \"that\nis, to wit, the next county (court) after the feast of Saint\nMichael, and the next county (court) after Christmas, and at the\nnext county (court) after Easter, and at the next county (court)\nafter the feast of Saint John \"  28 Edward I., ch. 1, (1300.) v\n\nLingard says, \"The Charter was ratified four times by Henry III.,\ntwice by Edward I., fifteen times by Edward III., seven times by\nRichard II., six times by Henry IV., and once by Henry V.;\"\nmaking thirty-five times in all.   3 Lingard, 50, note, Philad.\ned.\n\nCoke says Magna Carta was confirmed thirty-two times.   Preface\nto 2 Inst., p. 6.\n\nLingard calls these \"thirty-five successive ratifications\" of the\ncharter, \"a sufficient proof how much its provisions were\nabhorred by the sovereign, and how highly they were prized by the\nnation.\"   3 Lingard, 50.\n\n\nMackintosh says, \"For almost five centuries (that is, until 1688)\nit (Magna Carta) was appealed to as the decisive authority on\nbehalf of the people, though commonly so far only as the\nnecessities of each case demanded.\"   Mackintosh's Hist. of Eng.\nch. 3. 45 Lardner's Cab. Cyc., 221.\n\nCoke, who has labored so hard to overthrow the most vital\nprinciples of Magna Carta, and who, therefore, ought to be\nconsidered good authority when he speaks in its favor, [3] says:\n\n\"It is called Magna Carta, not that it is great in quantity, for\nthere be many voluminous charters commonly passed, specially in\nthese later times, longer than this is; nor comparatively in\nrespect that it is greater than Charta de Foresta, but in respect\nof the great importance and weightiness of the matter, as\nhereafter shall appear; and likewise for the same cause Charta de\nForesta; and both of them are called Magnae Char- tae Libertatum\nAngliae, (The Great Charters of the Liberties of England.)\n\n\"And it is also called Charta Libertatum regni, (Charter of the\nliberties of the kingdom;) and upon great reason it is so called\nof the effect, quia liberos facit, (because it makes men free.)\nSometime for the same cause (it is called) communis libertas,\n(common liberty,) and le chartre des franchises, (the charter of\nfranchises.)\n\n\"It was for the most part declaratory of the principal grounds of\nthe fundamental laws of England, and for the residue it is\nadditional to supply some defects of the common law.\n\n\"Also, by the said act of 25 Edward I., (called Confirmatio\nChartarum,) it is adjudged in parliament that the Great Charter\nand the Charter of the Forest shall be taken as the common law.\n\n\"They (Magna Carta and Carta de Foresta) were, for the most part,\nbut declarations of the ancient common laws of England, to the\nobservation and keeping whereof, the king was bound and sworn.\n\n\"After the making of Magna Charta, and Charta de Foresta, divers\nlearned men in the laws, that I may use the words of the record,\nkept schools of the law in the city of London, and taught such as\nresorted to them the laws of the realm, taking their foundation\nof Magna Charta and Charta de Foresta.\n\n\"And the said two charters have been confirmed, established, and\ncommanded to be put in execution by thirty-two several acts of\nparliament in all.\n\n\"This appeareth partly by that which hath been said, for that it\nhath so often been confirmed by the wise providence of so many\nacts of parliament.\n\n\"And albeit judgments in the king's courts are of high regard in\nlaw, and judicia (judgments) are accounted as jurisdicta, (the\nspeech of the law itself,) yet it is provided by act of\nparliament, that if any judgment be given contrary to any of the\npoints of the Great Charter and Charta de Foresta, by the\njustices, or by any other of the king's ministers, &c;., it shall\nbe undone, and holden for naught.\n\n\"And that both the said charters shall be sent under the great\nseal to all cathedral churches throughout the realm, there to\nremain, and shall be read to the people twice every year.\n\n\"The highest and most binding laws are the statutes which are\nestablished by parliament; and by authority of that highest court\nit is enacted (only to show their tender care of Magna Carta and\nCarta de Foresta) that if any statute be made contrary to the\nGreat Charter, or the Charter of the Forest, that shall be holden\nfor none; by which words all former statutes made against either\nof those charters are now repealed; and the nobles and great\nofficers were to be sworn to the observation of Magna Charta and\nCharta de Foresta.\n\n\"Magna fuit quondam magnae reverentia chartae.\" (Great was\nformerly the reverence for Magna Carta.)   Coke's Proem to 2\nInst., p. 1 to 7.\n\nCoke also says, \"All pretence of prerogative against Magna Charta\nis taken away.\"   2 Inst., 36.\n\nHe also says, \"That after this parliament (52 Henry III., in\n1267) neither Magna Carta nor Carta de Foresta was ever\nattempted to be impugned or questioned.\"   2 Inst., 102. [4]\n\nTo give all the evidence of the authority of Magna Carta, it\nwould be necessary to give the constitutional history of England\nsince the year 1215. This history would show that Magna Carta,\nalthough continually violated and evaded, was still acknowledged\nas law by the government, and was held up by the people as the\ngreat standard and proof of their rights and liberties. It would\nshow also that the judicial tribunals, whenever it suited their\npurposes to do so, were in the habit of referring to Magna Carta\nas authority, in the same manner, and with the same real or\npretended veneration, with which American courts now refer to the\nconstitution of the United States, or the constitutions of the\nstates. And, what is equally to the point, it would show that\nthese same tribunals, the mere tools of kings and parliaments,\nwould resort to the same artifices of assumption, precedent,\nconstruction, and false interpretation, to evade the requirements\nof Magna Carta, and to emasculate it of all its power for the\npreservation of liberty, that are resorted to by American courts\nto accomplish the same work on our American constitutions.\n\nI take it for granted, therefore, that if the authority of Magna\nCarta had rested simply upon its character as a compact between\nthe king and the people, it would have been forever binding upon\nthe king, (that is, upon the government, for the king was the\ngovernment,) in his legislative, judicial, and executive\ncharacter; and that there was no constitutional possibility of\nhis escaping from its restraints, unless the people themselves\nshould freely discharge him from them.\n\nBut the authority of Magna Carta does not rest, either wholly or\nmainly, upon its character as a compact. For centuries before the\ncharter was granted, its main principles constituted \"the Law of\nthe Land,\"   the fundamental and constitutional law of the realm,\nwhich the kings were sworn to maintain. And the principal benefit\nof the charter was, that it contained a written description and\nacknowledgment, by the king himself, of what the constitutional\nlaw of the kingdom was, which his coronation oath bound him to\nobserve. Previous to Magna Carta, this constitutional law rested\nmainly in precedents, customs, and the memories of the people.\nAnd if the king could but make one innovation upon this law,\nwithout arousing resistance, and being compelled to retreat from\nhis usurpation, he would cite that innovation as a precedent for\nanother act of the same kind; next, assert a custom; and,\nfinally, raise a controversy as to what the Law of the Land\nreally was. The great object of the barons and people, in\ndemanding from the king a written description and\nacknowledgment\nof the Law of the Land, was to put an end to all disputes of this\nkind, and to put it out of the power of the king to plead any\nmisunderstanding of the constitutional law of the kingdom. And\nthe charter, no doubt, accomplished very much in this way. After\nMagna Carta, it required much more audacity, cunning, or\nstrength, on the part of the king, than it had before, to invade\nthe people's liberties with impunity. Still, Magna Carta, like\nall other written constitutions, proved inadequate to the full\naccomplishment of its purpose; for when did a parchment ever\nhave\npower adequately to restrain a government, that had either\ncunning to evade its requirements, or strength to overcome those\nwho attempted its defence? The work of usurpation, therefore,\nthough seriously checked, still went on, to a great extent, after\nMagna Carta. Innovations upon the Law of the Land are still made\nby the government. One innovation was cited as a precedent;\nprecedents made customs; and customs became laws, so far as\npractice was concerned; until the government, composed of the\nking, the high functionaries of the church, the nobility, a House\nof Commons representing the \"forty shilling freeholders,\" and a\ndependent and servile judiciary, all acting in conspiracy against\nthe mass of the people, became practically absolute, as it is at\nthis day.\n\nAs proof that Magna Carta embraced little else than what was\npreviously recognized as the common law, or Law of the Land, I\nrepeat some authorities that have been already cited.\nCrabbe says, \"It is admitted on all hands that it (Magna Carta)\ncontains nothing but what was confirmatory of the common law\nand\nthe ancient usages of the realm; and is, properly speaking, only\nan enlargement of the charter of Henry I. and his successors.\"\nCrabbe's Hist. of the Eng. Law, p. 127.\n\nBlackstone says, \"It is agreed by all our historians that the\nGreat Charter of King John was, for the most part, compiled from\nthe ancient customs of the realm, or the laws of Edward the\nConfessor; by which they mean the old common law which was\nestablished under our Saxon princes.\"   Blackstone's Introd. to\nthe Charters. See Blackstone's Law Tracts, Oxford ed., p. 289.\n\nCoke says, \" The common law is the most general and ancient law\nof the realm... The common law appeareth in the statute of Magna\nCarta, and other ancient statutes, (which for the most part are\naffirmations of the common law,) in the original writs, in\njudicial records, and in our books of terms and years.\"   1\nInst., 115 b.\n\nCoke also says, \"It (Magna Carta) was for the most part\ndeclaratory of the principal grounds of the fundamental laws of\nEngland, and for the residue it was additional to supply some\ndefects of the common law... They (Magna Carta and Carta de\nForesta) were, for the most part, but declarations of the ancient\ncommon laws of England, to the observation and keeping whereof\nthe king was bound and sworn.\"   Preface to 2 Inst., p. 3 and 5.\n\nHume says, \"We may now, from the tenor of this charter, (Magna\nCarta,) conjecture what those laws were of King Edward, (the\nConfessor,) which the English nation during so many generations\nstill desired, with such an obstinate perseverance, to have\nrecalled and established. They were chiefly these latter articles\nof Magna Carta; and the barons who, at the beginning of these\ncommotions, demanded the revival of the Saxon laws,\nundoubtedly\nthought that they had sufficiently satisfied the people, by\nprocuring them this concession, which comprehended the principal\nobjects to which they had so long aspired.\"   Hume, ch. 11.\n\nEdward the First confessed that the Great Charter was\nsubstantially identical with the common law, as far as it went,\nwhen he commanded his justices to allow \"the Great Charter as the\nCommon Law,\" \" in pleas before them, and in judgment,\" as has\nbeen already cited in this chapter.   25 Edward I., ch. 1,\n(1297.)\n\nIn conclusion of this chapter, it may be safely asserted that the\nveneration, attachment, and pride, which the English nation, for\nmore than six centuries, have felt towards Magna Carta, are in\ntheir nature among the most irrefragable of all proofs that it\nwas the fundamental law of the land, and constitutionally binding\nupon the government; for, otherwise, it would have been, in their\neyes, an unimportant and worthless thing. What those sentiments\nwere I will use the words of others to describe,   the words,\ntoo, of men, who, like all modern authors who have written on the\nsame topic, had utterly inadequate ideas of the true character of\nthe instrument on which they lavished their eulogiums.\n\nHume, speaking of the Great Charter and the Charter of the\nForest, as they were confirmed by Henry III., in 1217, says:\"Thus\nthese famous charters were brought nearly to the shape in which\nthey have ever since stood; and they were, during many\ngenerations, the peculiar favorites of the English nation, and\nesteemed the most sacred rampart to national liberty and\nindependence. As they secured the rights of all orders of men,\nthey were anxiously defended by all, and became the basis, in a\nmanner, of the English monarchy, and a kind of original contract,\nwhich both limited the authority of the king and ensured the\nconditional allegiance of his subjects. Though often violated,\nthey were still claimed by the nobility and people; and, as no\nprecedents were supposed valid that infringed them, they rather\nacquired than lost authority, from the frequent attempts made\nagainst them in several ages, by regal and arbitrary power.\"\nHume, ch. 12.\n\nMackintosh says, \"It was understood by the simplest of the\nunlettered age for whom it was intended. It was remembered by\nthem... For almost five centuries it was appealed to as the\ndecisive authority on behalf of the people... To have produced\nit, to have preserved it, to have matured it, constitute the\nimmortal claim of England on the esteem of mankind. Her Bacons\narid Shakspeares, her Miltons and Newtons, with all the truth\nwhich they have revealed, and all the generous virtues which they\nhave inspired, are of inferior value when compared with the\nsubjection of men and their rulers to the principles of justice;\nif, indeed, it be not more true that these mighty spirits could\nnot have been formed except under equal laws, nor roused to full\nactivity without the influence of that spirit which the Great\nCharter breathed over their forefathers.\"   Mackintosh's Hist. of\nEng., ch. 3, [8]\n\nOf the Great Charter, the trial by jury is the vital part, and\nthe only part that places the liberties of the people in their\nown keeping. Of this Blackstone says:\n\n\"The trial by jury, or the country, per patriam, is also that\ntrial by the peers of every Englishman, which, as the grand\nbulwark of his liberties, is secured to him by the Great Charter;\nnullus liber homo capiatur, vel imprisonetur, aut exuletur, aut\naliquo modo destruatur, nisi per legale judicial parium suorum,\nvel per legem terrae.\n\nThe liberties of England cannot but subsist so long as this\npalladium remains sacred and inviolate, not only from all open,\nattacks, which none will be so hardy as to make, but also from\nall secret machinations which may sap and undermine it.\" [9]\n\n\"The trial by jury ever has been, and I trust ever will be,\nlooked upon as the glory of the English law... It is the most\ntranscendent privilege which any subject can enjoy or wish for,\nthat he cannot be affected in his property, his liberty, or his\nperson, but by the unanimous consent of twelve of his neighbors\nand equals.\"[10]\n\nHume calls the Trial by Jury \"An institution admirable in itself,\nand the best calculated for the preservation of liberty and the\nadministration of justice, that ever was devised by the wit of\nman.\" [11]\n\nAn old book, called \"English Liberties,\" says:\"English\nParliaments have all along been most zealous for preserving this\nGreat Jewel of Liberty, Trials by Juries having no less than\nfifty-eight several times, since the Norman Conquest, been\nestablished and confirmed by the legislative power, no one\nprivilege besides having been ever so often remembered in\nparliament.\"{12]\n\n[1] Mackintosh's Hist. of Eng., ch. 3. 45 Lardner's Cab. Cyc.,\n354.\n\n[2] \"Forty shilling freeholders\" were those \"people dwelling and\nresident in the same counties, whereof every one of them shall\nhave free land or tenement to the value of forty shillings by the\nyear at the least above all charges.\" By statute 8 Henry 6, ch.\n7, (1429,) these freeholders only were allowed to vote for\nmembers of Parliament from the counties.\n\n[3] He probably speaks in its favor only to blind the eyes of the\npeople to the frauds he has attempted upon its true meaning.\n\n[4] It will be noticed that Coke calls these confirmations of the\ncharter \"acts of parliament,\" instead of acts of the king alone.\nThis needs explanation.\n\nIt was one of Coke's ridiculous pretences, that laws anciently\nenacted by the king, at the request, or with the consent, or by\nthe advice, of his parliament, was \"an act of parliament,\"\ninstead of the act of the king. And in the extracts cited, he\ncarries this idea so far as to pretend that the various\nconfirmations of the Great Charter were \"acts of parliament,\"\ninstead of the acts of the kings. He might as well have pretended\nthat the original grant of the Charter was an \"act of parliament;\n\"because it was not only granted at the request, and with the\nconsent, and by the advice, but on the compulsion even, of those\nwho commonly constituted his parliaments. Yet this did not make\nthe grant of the charter \"an act of parliament.\" It was simply an\nact of the king.\n\nThe object of Coke, in this pretence, was to furnish some color\nfor the palpable false- hood that the legislative authority,\nwhich parliament was trying to assume in his own day, and which\nit finally succeeded in obtaining, had a precedent in the ancient\nconstitution of the kingdom.\n\nThere would be as much reason in saying that, because the ancient\nkings were in the habit of passing laws in special answer to the\npetitions of their subjects, therefore those petitioners were a\npart of the legislative power of the kingdom.\n\nOne great objection to this argument of Coke, for the legislative\nauthority of the ancient parliaments, is that a very large\nprobably much the larger   number of legislative acts were done\nwithout the advice, consent, request, or even presence, of a\nparliament. Not only were many formal statutes passed without\nany mention of the consent or advice of parliament, but a simple\norder of the king in council, or a simple proclamation, writ, or\nletter under seal, issued by his command, had the same force as\nwhat Coke calls \"an act of parliament.\" And this practice\ncontinued, to a considerable extent at least, down to Coke's own\ntime.\n\nThe kings were always in the habit of consulting their\nparliaments, more or less, in regard to matters of legislation,\nnot because their consent was constitutionally necessary, but in\norder to make influence in favor of their laws, and thus induce\nthe people to observe them, and the juries to enforce them.\nThe general duties of the ancient parliaments were not\nlegislative, but judicial, as will be shown more fully hereafter.\nThe people were not represented in the parliaments at the time of\nMagna Carta, but only the archbishops, bishops, earls, barons,\nand knights; so that little or nothing would have been gained for\nliberty by Coke's idea that parliament had a legislative power.\nHe would only have substituted an aristocracy for a king. Even\nafter the Commons were represented in parliament, they for some\ncenturies appeared only as petitioners, except in the matter of\ntaxation, when their consent was asked. And almost the only\nsource of their influence on legislation was this: that they\nwould sometimes refuse their consent to the taxation, unless the\nking would pass such laws as they petitioned for; or, as would\nseem to have been much more frequently the case, unless he would\nabolish such laws and practices as they remonstrated against.\nThe influence, or power of parliament, and especially of the\nCommons, in the general legislation of the country, was a thing\nof slow growth, having its origin in a device of the king to get\nmoney contrary to law, (as will be seen in the next volume,) and\nnot at all a part of the constitution of the kingdom, nor having\nits foundation in the consent of the people. The power, as at\npresent exercised, was not fully established until 1688, (near\nfive hundred years after Magna Carta,) when the House of\nCommons (falsely so called) had acquired such influence as the\nrepresentative, not of the people, but of the wealth, of the\nnation, that they compelled, the king to discard the oath fixed\nby the constitution of the kingdom; (which oath has been already\ngiven in a former chapter, [5] and was, in substance, to preserve\nand execute the Common Law, the Law of the Land,   or, in the\nwords of the oath, \"the just laws and customs which the common\npeople had chosen;\") and to swear that he would \"govern the\npeople of this kingdom of England, and the dominions thereto\nbelonging, accordingto the statutes in parliament agreed on, and\nthe laws and customs of the same.\" [6]\n\nThe passage and enforcement of this statute, and the assumption\nof this oath by the king, were plain violations of the English\nconstitution, inasmuch as they abolished, so far as such an oath\ncould abolish, the legislative power of the king, and also \"those\njust laws and customs which the common people (through their\njuries) had chosen,\" and substituted the will of parliament in\ntheir stead.\n\nCoke was a great advocate for the legislative power of\nparliament, as a means of restraining the power of the king. As\nhe denied all power to juries to decide upon the obligation of\nlaws, and as he held that the legislative power was \"so\ntranscendent and absolute as (that) it cannot be confined, either\nfor causes or persons, within any bounds,\" [7] he was perhaps\nhonest in holding that it was safer to trust this terrific power\nin the hands of parliament, than in the hands of the king. His\nerror consisted in holding that either the king or parliament had\nany such power, or that they had any power at all to pass laws\nthat should be binding upon a jury.\n\nThese declarations of Coke, that the charter was confirmed by\nthirty-two \"acts of parliament,\" have a mischievous bearing in\nanother respect. They tend to weaken the authority of the\ncharter, by conveying the impression that the charter itself\nmight be abolished by \"act of parliament.\" Coke himself admits\nthat it could not be revoked or rescinded by the king; for he\nsays, \"All pretence of prerogative against Magna Carta is taken\naway.\" (2 Inst., 36.)\n\nHe knew perfectly well, and the whole English nation knew, that\nthe king could not lawfully infringe Magna Carta. Magna Carta,\ntherefore, made it impossible that absolute power could ever be\npractically established in England, in the hands of the king.\nHence, as Coke was an advocate for absolute power,   that is, for\na legislative power \"so transcendent and absolute as (that) it\ncannot, be confined, either for causes or persons, within any\nbounds,\"   there was no alternative for him but to vest this\nabsolute power in parliament. Had he not vested it in parliament,\nhe would have been obliged to abjure it altogether, and to\nconfess that the people, through their juries, had the right to\njudge of the obligation of all legislation whatsoever; in other\nwords, that they had the right to confine the government within\nthe limits of \"those just laws and customs which the common\npeople (acting as jurors) had chosen.\" True to his instincts, as\na judge, and as a tyrant, he assumed that this absolute power was\nvested in the hands of parliament.\n\nBut the truth was that, as by the English constitution parliament\nhad no authority at all for general legislation, it could no more\nconfirm, than it could abolish, Magna Carta.\n\nThese thirty-two confirmations of Magna Carta, which Coke\nspeaks of as \"acts of parliament,\" were merely acts of the king. The\nparliaments, indeed, by refusing to grant him money, except, on\nthat condition, and otherwise, had contributed to oblige him to\nmake the confirmations; just as they had helped to oblige him by\narms to grant the charter in the first place. But the confirmations\nthemselves were nevertheless constitutionally, as well as formally,\nthe acts of the king alone.\n\n[5] See page 103.\n\n[6]St. 1.William and Mary, ch. 6, (1688)\n\n[7]4. Inst., 36.\n\n[8] Under the head of \"John.\"\n\n[9] 4 Blackstone, 849-50.\n\n[10] 3 Blackstone, 379.\n\n[11] Hume, ch. 2.\n\n[12] Page 203, 5th edition, 1721.\n\n\nCHAPTER XII. Limitations Imposed Upon The Majority By The\nTrial By Jury\n\nThe principal objection, that will be made to the doctrine of\nthis essay, is, that under it, a jury would paralyze the power of\nthe majority, and veto all legislation that was not in accordance\nwith the will of the whole, or nearly the whole, people.\n\nThe answer to this objection is, that the limitation, which would\nbe thus imposed upon the  legislative power, (whether that power\nbe vested in the majority, or minority, of the people,) is the\ncrowning merit of the trial by jury. It has other merits; but,\nthough important in themselves, they are utterly insignificant\nand worthless in comparison with this.\n\nIt is this power of vetoing all partial and oppressive\nlegislation, and of restricting the government to the maintenance\nof such laws as the whole, or substantially the whole, people are\nagreed in, that makes the trial by jury \"the palladium of\nliberty.\" Without this power it would never have deserved that\nname.\n\nThe will, or the pretended will, of the majority, is the last\nlurking place of tyranny at the present day. The dogma, that\ncertain individuals and families have a divine appointment to\ngovern the rest of mankind, is fast giving place to the one that\nthe larger number have a right to govern the smaller; a dogma,\nwhich may, or may not, be less oppressive in its practical\noperation, but which certainly is no less false or tyrannical in\nprinciple, than the one it is so rapidly supplanting. Obviously\nthere is nothing in the nature of majorities, that insures\njustice at their hands. They have the same passions as\nminorities, and they have no qualities whatever that should be\nexpected to prevent them from practising the same tyranny as\nminorities, if they think it will be for their interest to do so.\n\nThere is no particle of truth in the notion that the majority\nhave a right to rule, or to exercise arbitrary power over, the\nminority, simply because the former are more numerous than the\nlatter. Two men have no more natural right to rule one, than one\nhas to rule two. Any single man, or any body of men, many or few,\nhave a natural right to maintain justice for themselves, and for\nany others who may need their assistance against the injustice of\nany and all other men, without regard to their numbers; and\nmajorities have no right to do any more than this. The relative\nnumbers of the opposing parties have nothing to do with the\nquestion of right. And no more tyrannical principle was ever\navowed, than that the will of the majority ought to have the\nforce of law, without regard to its justice; or, what is the same\nthing, that the will of the majority ought always to be presumed\nto be in accordance with justice. Such a doctrine is only another\nform of the doctrine that might makes right.\n\nWhen two men meet one upon the highway, or in the wilderness,\nhave they a right to dispose of his life, liberty, or property at\ntheir pleasure, simply because they are the more numerous party?\nOr is he bound to submit to lose his life, liberty, or property,\nif they demand it, merely because he is the less numerous party?\nOr, because they are more numerous than he, is he bound to\npresume that they are governed only by superior wisdom, and the\nprinciples of justice, and by no selfish passion that can lead\nthem to do him a wrong? Yet this is the principle, which it is\nclaimed should govern men in all their civil relations to each\nother. Mankind fall in company with each other on the highway or\nin the wilderness of life, and it is claimed that the more\nnumerous party, simply by virtue of their superior numbers, have\nthe right arbitrarily to dispose of the life, liberty, and\nproperty of the minority; and that the minority are bound, by\nreason of their inferior numbers, to practise abject submission,\nand consent to hold their natural rights,  any, all, or none, as\nthe case may be,  at the mere will and pleasure of the majority;\nas if all a man's natural rights expired, or were suspended by\nthe operation of a paramount law, the moment he came into the\npresence of superior numbers.\n\nIf such be the true nature of the relations men hold to each\nother in this world, it puts an end to all such things as crimes,\nunless they be perpetrated upon those who are equal or superior,\nin number, to the actors. All acts committed against persons\ninferior in number to the aggressors, become but the exercise at\nrightful authority. And consistency with their own principles\nrequires that all governments, founded on the will of the\nmajority, should recognize this plea as a sufficient\njustification for all crimes whatsoever.\n\nIf it be said that the majority should be allowed to rule, not\nbecause they are stronger than the minority, but because their\nsuperior numbers furnish a probability that they are in the\nright; one answer is, that the lives, liberties, and properties\nof men are too valuable to them, and the natural presumptions are\ntoo strong in their favor, to justify the destruction of them by\ntheir fellow-men on a mere balancing of probabilities, or on any\nground whatever short of certainty beyond a reasonable doubt.\nThis last is the moral rule universally recognized to be binding\nupon single individuals. And in the forum of conscience the same\nrule is equally binding upon governments, for governments are\nmere associations of individuals. This is the rule on which the\ntrial by jury is based. And it is plainly the only rule that\nought to induce a man to submit his rights to the adjudication of\nhis fellow-men, or dissuade him from a forcible defence of them.\n\nAnother answer is, that if two opposing parties could be supposed\nto have no personal interests or passions involved, to warp their\njudgments, or corrupt their motives, the fact that one of the\nparties was more numerous than the other, (a fact that leaves the\ncomparative intellectual competency of the two parties entirely\nout of consideration,) might, perhaps, furnish a slight, but at\nbest only a very slight, probability that such party was on the\nside of justice. But when it is considered that the parties are\nliable to differ in their intellectual capacities, and that one,\nor the other, or both, are undoubtedly under the influence of\nsuch passions as rivalry, hatred, avarice, and ambition.\npassions that are nearly certain to pervert their judgments, and\nvery likely to corrupt their motives,  all probabilities founded\nupon a mere numerical majority, in one party, or the other,\nvanish at once; and the decision of the majority becomes, to all\npractical purposes, a mere decision of chance. And to dispose of\nmen's properties, liberties, and lives, by the mere process of\nenumerating such parties, is not only as palpable gambling as was\never practised, but it is also the most atrocious that was ever\npractised, except in matters of government. And where\ngovernment is instituted on this principle, (as in the United States, for\nexample,) the nation is at once converted into one great gambling\nestablishment; where all the rights of men are the stakes; a few\nbold bad men throw the dice   (dice loaded with all the hopes,\nfears, interests, and passions which rage in the breasts of\nambitious and desperate men,)   and all the people, from the\ninterests they have depending, become enlisted, excited,\nagitated, and generally corrupted, by the hazards of the game.\n\nThe trial by jury disavows the majority principle altogether; and\nproceeds upon the ground that every man should be presumed to\nbe entitled to life, liberty, and such property as he has in his\npossession; and that the government should lay its hand upon none\nof them, (except for the purpose of bringing them before a\ntribunal for adjudication,) unless it be first ascertained.,\nbeyond a reasonable doubt, in every individual case, that justice\nrequires it.\n\nTo ascertain whether there be such reasonable doubt, it takes\ntwelve men by lot from the whole body of mature men. If any of\nthese twelve are proved to be under the influence of any special\ninterest or passion, that may either pervert their judgments, or\ncorrupt their motives, they are set aside as unsuitable for the\nperformance of a duty requiring such absolute impartiality and\nintegrity; and others substituted in their stead. When the utmost\npracticable impartiality is attained on the part of the whole\ntwelve, they are sworn to the observance of justice; and their\nunanimous concurrence is then held to be necessary to remove that\nreasonable doubt, which, unremoved, would forbid the\ngovernment to lay its hand on its victim.\n\nSuch is the caution which the trial by jury both practises and\ninculcates, against the violation of justice, on the part of the\ngovernment, towards the humblest individual, in the smallest\nmatter affecting his civil rights, his property, liberty, or\nlife. And such is the contrast, which the trial by jury presents,\nto that gambler's and robber's rule, that the majority have a\nright, by virtue of their superior numbers, and without regard to\njustice, to dispose at pleasure of the property and persons of\nall bodies of men less numerous than themselves.\n\nThe difference, in short, between the two systems, is this. The\ntrial by jury protects person and property, inviolate to their\npossessors, from the hand of the law, unless justice, beyond a\nreasonable doubt, require them to be taken. The majority\nprinciple takes person and property from their possessors, at the\nmere arbitrary will of a majority, who are liable and likely to\nbe influenced, in taking them, by motives of oppression, avarice,\nand ambition.\n\nIf the relative numbers of opposing parties afforded sufficient\nevidence of the comparative justice of their claims the\ngovernment should carry the principle into its courts of justice;\nand instead of referring controversies to impartial and\ndisinterested men,  to judges and jurors, sworn to do justice,\nand bound patiently to hear and weigh all the evidence and\narguments that can be offered on either side,  it should simply\ncount the plaintiff's and defendants in each case, (where there\nwere more than one of either,) and then give the case to the\nmajority; after ample opportunity had been given to the\nplaintiffs and defendants to reason with, flatter, cheat,\nthreaten, and bribe each other, by way of inducing them to change\nsides. Such a. process would be just as rational in courts of\njustice, as in halls of legislation; for it is of no importance\nto a man, who has his rights taken from him, whether it be done\nby a legislative enactment, or a judicial decision.\n\nIn legislation, the people are all arranged as plaintiff's and\ndefendants in their own causes; (those who are in favor of a\nparticular law, standing as plaintiff's, and those who are\nopposed to the same law, standing as defendants); and to allow\nthese causes to be decided by majorities, is plainly as absurd as\nit would be to allow judicial decisions to be determined by the\nrelative number of plaintiffs and defendants.\n\nIf this mode of decision were introduced into courts of justice,\nwe should see a parallel, and only a parallel, to that system of\nlegislation which we witness daily. We should see large bodies of\nmen conspiring to bring perfectly groundless suits, against other\nbodies of men, for large sums of money, and to carry them by\nsheer force of numbers; just as we now continually see large\nbodies of men conspiring to carry, by mere force of numbers, some\nscheme of legislation that will, directly or indirectly, take\nmoney out of other men's pockets, and put it into their own. And\nwe should also see distinct bodies of men, parties in separate\nsuits, combining and agreeing all to appear and be counted as\nplaintiffs or defendants in each other's suits, for the purpose\nof ekeing out the necessary majority; just as we now see distinct\nbodies of men, interested in separate schemes of ambition or\nplunder, conspiring to carry through a batch of legislative\nenactments, that shall accomplish their several purposes.\n\nThis system of combination and conspiracy would go on, until at\nlength whole states and a whole nation would become divided into\ntwo great litigating parties, each party composed of several\nsmaller bodies, having their separate suits, but all confederating\nfor the purpose of making up the necessary majority in each case.\nThe individuals composing each of these two great parties, would\nat length become so accustomed to acting together, and so well\nacquainted with each others' schemes, and so mutually\ndependent upon each others' fidelity for success, that they would\nbecome organized as permanent associations; bound together by\nthat kind of honor that prevails among thieves; and pledged by\nall their interests, sympathies, and animosities, to mutual\nfidelity, and to unceasing hostility to their opponents; and\nexerting all their arts and all their resources of threats,\ninjuries, promises, and bribes, to drive or seduce from the other\nparty enough to enable their own to retain or acquire such a\nmajority as would be necessary to gain their own suits, and\ndefeat the suits of their opponents. All the wealth and talent of\nthe country would become enlisted in the service of these rival\nassociations; and both would at length become so compact, so well\norganized, so powerful, and yet always so much in need of\nrecruits, that a private person would be nearly or quite unable\nto obtain justice in the most paltry suit with his neighbor,\nexcept on the condition of joining one of these great litigating\nassociations, who would agree to carry through his cause, on\ncondition of his assisting them to carry through all the others,\ngood and bad, which they had already undertaken. If he refused\nthis, they would threaten to make a similar offer to his\nantagonist, and suffer their whole numbers to be counted against\nhim.\n\nNow this picture is no caricature, but a true and honest\nlikeness. And such a system of administering justice, would be no\nmore false, absurd, or atrocious, than that system of working by\nmajorities, which seeks to accomplish, by legislation, the same\nends which, in the case supposed, would be accomplished by\njudicial decisions.\n\nAgain, the doctrine that the minority ought to submit to the will\nof the majority, proceeds, not upon the principle that government\nis formed by voluntary association, and for an agreed purpose, on\nthe part of all who contribute to its support, but upon the\npresumption that all government must be practically a state of\nwar and plunder between opposing parties; and that in order to\nsave blood, and prevent mutual extermination, the parties come to\nan agreement that they will count their respective numbers\nperiodically, and the one party shall then be permitted quietly\nto rule and plunder, (restrained only by their own discretion,)\nand the other submit quietly to be ruled and plundered, until the\ntime of the next enumeration.\n\nSuch an agreement may possibly be wiser than unceasing and\ndeadly conflict; it nevertheless partakes too much of the ludicrous\nto deserve to be seriously considered as an expedient for the\nmaintenance of civil society. It would certainly seem that\nmankind might agree upon a cessation of hostilities, upon more\nrational and equitable terms than that of unconditional\nsubmission on the part of the less numerous body. Unconditional\nsubmission is usually the last act of one who confesses himself\nsubdued and enslaved. How any one ever came to imagine that\ncondition to be one of freedom, has never been explained. And as\nfor the system being adapted to the maintenance of justice among\nmen, it is a mystery that any human mind could ever have been\nvisited with an insanity wild enough to originate the idea.\n\nIf it be said that other corporations, than governments,\nsurrender their affairs into the hands of the majority, the\nanswer is, that they allow majorities to determine only trifling\nmatters, that are in their nature mere questions of discretion,\nand where there is no natural presumption of justice or right on\none side rather than the other. They never surrender to the\nmajority the power to dispose of; or, what is practically the\nsame thing, to determine, the rights of any individual member.\nThe rights of every member are determined by the written\ncompact, to which all the members have voluntarily agreed.\n\nFor example. A banking corporation allows a majority to\ndetermine such questions of discretion as whether the note of\nA or of B shall be discounted; whether notes shall be discounted\non one, two, or six days in the week; how many hours in a day\ntheir banking-house shall be kept open; how many clerks shall\nbe employed; what salaries they shall receive, and such like\nmatters, which are in their nature mere subjects of discretion,\nand where there are no natural presumptions of justice or right\nin favor of one course over the other. But no banking corporation\nallows a majority, or any other number of its members less than\nthe whole, to divert the funds of the corporation to any other\npurpose than the one to which every member of the corporation\nhas legally agreed that they may be devoted; nor to take the stock of\none member and give it to another; nor to distribute the\ndividends among the stockholders otherwise than to each one the\nproportion which he has agreed to accept, and all the others have\nagreed that he shall receive. Nor does any banking corporation\nallow a majority to impose taxes upon the members for the\npayment of the corporate expenses, except in such proportions as\nevery member has consented that they may be imposed. All these\nquestions, involving the rights of the members as against each\nother, are fixed by the articles of the association,  that is, by\nthe agreement to which every member has personally assented.\n\nWhat is also specially to be noticed, and what constitutes a\nvital difference between the banking corporation and the\npolitical corporation, or government, is, that in case of\ncontroversy among the members of the banking corporation, as to\nthe rights of any member, the question is determined, not by any\nnumber, either majority, or minority, of the corporation itself,\nbut by persons out of the corporation; by twelve men acting as\njurors, or by other tribunals of justice, of which no member of\nthe corporation is allowed to be a part. But in the case of the\npolitical corporation, controversies among the parties to it, as\nto the rights of individual members, must of necessity be settled\nby members of the corporation itself, because there are no\npersons out of the corporation to whom the question can be\nreferred.\n\nSince, then, all questions as to the rights of the members of the\npolitical corporation, must be determined by members of the\ncorporation itself, the trial by jury says that no man's rights,\nneither his right to his life, his liberty, nor his property,\nshall be determined by any such standard as the mere will and\npleasure of majorities; but only by the unanimous verdict of a\ntribunal fairly representing the whole people,  that is, a\ntribunal of twelve men, taken at random from the whole body, and\nascertained to be as impartial as the nature of the case will\nadmit, and sworn to the observance of justice. Such is the\ndifference in the two kinds of corporations; and the custom of\nmanaging by majorities the mere discretionary matters of business\ncorporations, (the majority having no power to determine the\nrights of any member,) furnishes no analogy to the practice,\nadopted by political corporations, of disposing of all the rightsof\ntheir members by the arbitrary will of majorities.\n\nBut further. The doctrine that the majority have a right to rule,\nproceeds upon the principle that minorities have no rights in the\ngovernment; for certainly the minority cannot be said to have any\nrights in a government, so long as the majority alone determine\nwhat their rights shall be. They hold everything, or nothing, as\nthe case may be, at the mere will of the majority.\n\nIt is indispensable to a \"free government,\" (in the political\nsense of that term,) that the minority, the weaker party, have a\nveto upon the acts of the majority. Political liberty is liberty\nfor the weaker party in a nation. It is only the weaker party\nthat lose their liberties, when a government becomes oppressive.\nThe stronger party, in all governments, are free by virtue of\ntheir superior strength. They never oppress themselves.\n\nLegislation is the work of this stronger party; and if, in\naddition to the sole power of legislating, they have the sole\npower of determining what legislation shall be enforced, they\nhave all power in their hands, and the weaker party are the\nsubjects of an absolute government.\n\nUnless the weaker party have a veto, either upon the making, or\nthe enforcement of laws, they have no power whatever in the\ngovernment, and can of course have no liberties except such as\nthe stronger party, in their arbitrary discretion, see fit to\npermit them to enjoy.\n\nIn England and the United States, the trial by jury is the only\ninstitution that gives the weaker party any veto upon the power\nof the stronger. Consequently it is the only institution, that\ngives them any effective voice in the government, or any guaranty\nagainst oppression.\n\nSuffrage, however free, is of no avail for this purpose; because\nthe suffrage of the minority is overborne by the suffrage of the\nmajority, and is thus rendered powerless for purposes of\nlegislation. The responsibility of officers can be made of no\navail, because they are responsible only to the majority. The\nminority, therefore, are wholly without rights in the government,\nwholly at the mercy of the majority, unless, through the trial by\njury, they have a veto upon such legislation as they think\nunjust.\n\nGovernment is established for the protection of the weak against\nthe strong. This is the principal, if not the sole, motive for\nthe establishment of all legitimate government. Laws, that are\nsufficient for the protection of the weaker party, are of course\nsufficient for the protection of the stronger party; because the\nstrong can certainly need no more protection than the weak. It\nis, therefore, right that the weaker party should be represented\nin the tribunal which is finally to determine what legislation\nmay be enforced; and that no legislation shall be enforced\nagainst their consent. They being presumed to be competent judges\nof what kind of legislation makes for their safety, and what for\ntheir injury, it must be presumed that any legislation, which\nthey object to enforcing, tends to their oppression, and not to\ntheir security.\n\nThere is still another reason why the weaker party, or the\nminority, should have a veto upon all legislation which they\ndisapprove. That reason is, that that is the only means by which\nthe government can be kept within the limits of the contract,\ncompact, or constitution, by which the whole people agree to\nestablish government. If the majority were allowed to interpret\nthe compact for themselves, and enforce it according to their own\ninterpretation, they would, of course, make it authorize them to\ndo whatever they wish to do.\n\nThe theory of free government is that it is formed by the\nvoluntary contract of the people individually with each other.\nThis is the theory, (although it is not, as it ought to be, the\nfact,) in all the governments in the United States, as also in\nthe government of England. The theory assumes that each man,\nwho is a party to the government, and contributes to its support,\nhas individually and freely consented to it. Otherwise the\ngovernment would have no right to tax him for its support,\nfor taxation without consent is robbery. This theory, then,\nnecessarily supposes that this government, which is formed by\nthe free consent of all, has no powers except such as all the\nparties to it have individually agreed that it shall have: and\nespecially that it has no power to pass any laws, except such\nas all the parties have agreed that it may pass.\n\nThis theory supposes that there may be certain laws that will be\nbeneficial to all,  so beneficial that all consent to be taxed\nfor their maintenance. For the maintenance of these specific\nlaws, in which all are interested, all associate. And they\nassociate for the maintenance of those laws only, in which allare\ninterested. It would be absurd to suppose that all would\nassociate, and consent to be taxed, for purposes which were\nbeneficial only to a part; and especially for purposes that were\ninjurious to any. A government of the whole, therefore, can have\nno powers except such as all the parties consent that it may\nhave. It can do nothing except what all have consented that it\nmay do. And if any portion of the people,  no matter how large\ntheir number, if it be less than the whole,  desire a government\nfor any purposes other than those that are common to all, and\ndesired by all, they must form a separate association for those\npurposes. They have no right,  by perverting this government of\nthe whole, to the accomplishment of purposes desired only by a\npart,   to compel any one to contribute to purposes that are\neither useless or injurious to himself.\n\nSuch being the principles on which the government is formed, the\nquestion arises, how shall this government, where formed, be kept\nwithin the limits of the contract by which it was established?\nHow shall this government, instituted by the whole people, agreed\nto by the whole people, supported by the contributions of the\nwhole people, be confined to the accomplishment of those\npurposes alone, which the whole people desire? How shall it be\npreserved from degeneration into a mere government for the benefit\nof a part only of those who established, and who support it? How shall\nit be prevented from even injuring a part of its own members, for\nthe aggrandizement of the rest? Its laws must be, (or at least\nnow are,) passed, and most of its other acts performed, by mere\nagents,  agents chosen by a part of the people, and not by the\nwhole. How can these agents be restrained from seeking their own\ninterests, and the interests of those who elected them, at the\nexpense of the rights of the remainder of the people, by the\npassage and enforcement of laws that shall be partial, unequal,\nand unjust in their operation? That is the great question. And\nthe trial by jury answers it. And how does the trial by jury\nanswer it? It answers it, as has already been shown throughout\nthis volume, by saying that these mere agents and attorneys, who\nare chosen by a part only of the people, and are liable to be\ninfluenced by partial and unequal purposes, shall not have\nunlimited authority in the enactment and enforcement of laws;\nthat they shall not exercise all the functions of government. It\nsays that they shall never exercise that ultimate power of\ncompelling obedience to the laws by punishing for disobedience,\nor of executing the laws against the person or property of any\nman, without first getting the consent of the people, through a\ntribunal that may fairly be presumed to represent the whole, or\nsubstantially the whole, people. It says that if the power to\nmake laws, and the power also to enforce them, were committed to\nthese agents, they would have all power,  would be absolute\nmasters of the people, and could deprive them of their rights at\npleasure. It says, therefore, that the people themselves will\nhold a veto upon the enforcement of any and every law, which\nthese agents may enact, and that whenever the occasion arises for\nthem to give or withhold their consent,  inasmuch as the whole\npeople cannot assemble, or devote the time and attention\nnecessary to the investigation of each case,  twelve of their\nnumber shall be taken by lot, or otherwise at random, from the\nwhole body; that they shall not be chosen by majorities, (the\nsame majorities that elected the agents who enacted the laws to\nbe put in issue,) nor by any interested or suspected party; that\nthey shall not be appointed by, or be in any way dependent upon,\nthose who enacted the law; that their opinions, whether for or\nagainst the law that is in issue, shall not be inquired of\nbeforehand; and that if these twelve men give their consent to\nthe enforcement of the law, their consent shall stand for the\nconsent of the whole.\n\nThis is the mode, which the trial by jury provides, for keeping\nthe government within the limits designed by the whole people,\nwho have associated for its establishment. And it is the only\nmode, provided either by the English or American constitutions,\nfor the accomplishment of that object.\n\nBut it will, perhaps, be said that if the minority can defeat the\nwill of the majority, then the minority rule the majority. But\nthis is not true in any unjust sense. The minority enact no laws\nof their own. They simply refuse their assent to such laws of the\nmajority as they do not approve. The minority assume no authority\nover the majority; they simply defend themselves. They do not\ninterfere with the right of the majority to seek their own\nhappiness in their own way, so long as they (the majority) do not\ninterfere with the minority. They claim simply not to be\noppressed, and not to be compelled to assist in doing anything\nwhich they do not approve. They say to the majority, \" We will\nunite with you, if you desire it, for the accomplishment of all\nthose purposes, in which we have a common interest with you.\nYou can certainly expect us to do nothing more. If you do not choose\nto associate with us on those terms, there must be two separate\nassociations. You must associate for the accomplishment of your\npurposes; we for the accomplishment of ours.\"\n\nIn this case, the minority assume no authority over the majority;\nthey simply refuse to surrender their own liberties into the\nhands of the majority. They propose a union; but decline\nsubmission. The majority are still at liberty to refuse the\nconnection, and to seek their own happiness in their own way,\nexcept that they cannot be gratified in their desire to become\nabsolute masters of the minority.\n\nBut, it may be asked, how can the minority be trusted to enforce\neven such legislation as is equal and just? The answer is, that\nthey are as reliable for that purpose as are the majority; they\nare as much presumed to have associated, and are as likely to\nhave associated, for that object, as are the majority; and they\nhave as much interest in such legislation as have the majority.\nThey have even more interest in it; for, being the weaker party,\nthey must rely on it for their security,   having no other\nsecurity on which they can rely. Hence their consent to the\nestablishment of government, and to the taxation required for its\nsupport, is presumed, (although it ought not to be presumed,)\nwithout any express consent being given. This presumption of\ntheir consent to be taxed for the maintenance of laws, would be\nabsurd, if they could not themselves be trusted to act in good\nfaith in enforcing those laws. And hence they cannot be presumed\nto have consented to be taxed for the maintenance of any laws,\nexcept such as they are themselves ready to aid in enforcing. It\nis therefore unjust to tax them, unless they are eligible to\nseats in a jury, with power to judge of the justice of the laws.\nTaxing them for the support of the laws, on the assumption that\nthey are in favor of the laws, and at the same time refusing them\nthe right, as jurors, to judge of the justice of the laws, on the\nassumption that they are opposed to the laws, are flat\ncontradictions.\n\nBut, it will be asked, what motive have the majority, when they\nhave all power in their own hands, to submit their will to the\nveto of the minority?\n\nOne answer is, that they have the motive of justice. It would be\nunjust to compel the minority to contribute, by taxation, to the\nsupport of any laws which they did not approve.\n\nAnother answer is, that if the stronger party wish to use their\npower only for purposes of justice, they have no occasion to fear\nthe veto of the weaker party; for the latter have as strong\nmotives for the maintenance of just government, as have the\nformer.\n\nAnother answer is, that if the stronger party use their power\nunjustly, they will hold it by an uncertain tenure, especially in\na community where knowledge is diffused; for knowledge will\nenable the weaker party to make itself in time the stronger\nparty. It also enables the weaker party, even while it remains\nthe weaker party, perpetually to annoy, alarm, and injure their\noppressors. Unjust power,  or rather power that is grossly\nunjust, and that is known to be so by the minority,   can be\nsustained only at the expense of standing armies, and all the\nother machinery of force; for the oppressed party are always\nready to risk their lives for purposes of vengeance, and the\nacquisition of their rights, whenever there is any tolerable\nchance of success. Peace, safety, and quiet for all, can be\nenjoyed only under laws that obtain the consent of all. Hence\ntyrants frequently yield to the demands of justice from those\nweaker than themselves, as a means of buying peace and safety.\n\nStill another answer is, that those who are in the majority on\none law, will be in the minority on another. All, therefore, need\nthe benefit of the veto, at some time or other, to protect\nthemselves from injustice.\n\nThat the limits, within which legislation would, by this process,\nbe confined, would be exceedingly narrow, in comparison with\nthose it at present occupies, there can be no doubt. All\nmonopolies, all special privileges, all sumptuary laws, all\nrestraints upon any traffic, bargain, or contract, that was\nnaturally lawful, [1] all restraints upon men's natural rights,\nthe whole catalogue of mala prohibita, and all taxation to which\nthe taxed parties had not individually, severally, and freely\nconsented, would be at an end; because all such legislation\nimplies a violation of the rights of a greater or less minority.\nThis minority would disregard, trample upon, or resist, the\nexecution of such legislation, and then throw themselves upon a\njury of the whole people for justification and protection. In\nthis way all legislation would be nullified, except the\nlegislation of that general nature which impartially protected\nthe rights, and subserved the interests, of all. The only\nlegislation that could be sustained, would probably be such as\ntended directly to the maintenance of justice and liberty; such,\nfor example, as should contribute to the enforcement of\ncontracts, the protection of property, and the prevention and\npunishment of acts intrinsically criminal. In short, government\nin practice would be brought to the necessity of a strict\nadherence to natural law, and natural justice, instead of being,\nas it now is, a great battle, in which avarice and ambition are\nconstantly fighting for and obtaining advantages over the natural\nrights of mankind.\n\n[1] Such as restraints upon banking, upon the rates of interest,\nupon traffic with foreigners, &e;., &c;.\n\nAPPENDIX\n\nTAXATION\n\nIt was a principle of the Common Law, as it is of the law of\nnature, and of common sense, that no man can be taxed without\nhis personal consent. The Common Law knew nothing of that system,\nwhich now prevails in England, of assuming a man's own consent\nto be taxed, because some pretended representative, whom he never\nauthorized to act for him, has taken it upon himself to consent\nthat he may be taxed. That is one of the many frauds on the\nCommon Law, and the English constitution, which have been\nintroduced since Magna Carta. Having finally established itself\nin England, it has been stupidly and servilely copied and\nsubmitted to in the United States.\n\n\nIf the trial by jury were reestablished, the Common Law principle\nof taxation would be reestablished with it; for it is not to be\nsupposed that juries would enforce a tax upon an individual which\nhe had never agreed to pay. Taxation without consent is as\nplainly robbery, when enforcers against one man, as when\nenforced against millions; and it is not to be imagined that juries\ncould be blind to so self-evident a principle. Taking a man's money\nwithout his consent, is also as much robbery, when it is done by\nmillions of men, acting in concert, and calling themselves a\ngovernment, as when it is done by a single individual, acting on\nhis own responsibility, and calling himself a highwayman. Neither\nthe numbers engaged in the act, nor the different characters they\nassume as a cover for the act, alter the nature of the act\nitself.\n\nIf the government can take a man's money without his consent,\nthere is no limit to the additional tyranny it may practise upon\nhim; for, with his money, it can hire soldiers to stand over him,\nkeep him in subjection, plunder him at discretion, and kill him\nif he resists. And governments always will do this, as they\neverywhere and always have done it, except where the Common\nLaw principle has been established. It is therefore a first\nprinciple, a very sine qua non of political freedom, that a man\ncan be taxed only by his personal consent. And the establishment\nof this principle, with trial by jury, insures freedom of course;\nbecause:1. No man would pay his money unless he had first\ncontracted for such a government as he was willing to support;\nand,2. Unless the government then kept itself within the terms of\nits contract, juries would not enforce the payment of the tax.\nBesides, the agreement to be taxed would probably be entered into\nbut for a year at a time. If, in that year, the government proved\nitself either inefficient or tyrannical, to any serious degree,\nthe contract would not be renewed. The dissatisfied parties, if\nsufficiently numerous for a new organization, would form\nthemselves into a separate association for mutual protection. If\nnot sufficiently numerous for that purpose, those who were\nconscientious would forego all governmental protection, rather\nthan contribute to the support of a government which they deemed\nunjust.\n\nAll legitimate government is a mutual insurance company,\nvoluntarily agreed upon by the parties to it, for the protection\nof their rights against wrong-doers. In its voluntary character\nit is precisely similar to an association for mutual protection\nagainst fire or shipwreck. Before a man will join an association\nfor these latter purposes, and pay the premium for being insured,\nhe will, if he be a man of sense, look at the articles of the\nassociation; see what the company promises to do; what it is\nlikely to do; and what are the rates of insurance. If he be\nsatisfied on all these points, he will become a member, pay his\npremium for a year, and then hold the company to its contract. If\nthe conduct of the company prove unsatisfactory, he will let his\npolicy expire at the end of the year for which he has paid; will\ndecline to pay any further premiums, and either seek insurance\nelsewhere, or take his own risk without any insurance. And as men\nact in the insurance of their ships and dwellings, they would act\nin the insurance of their properties, liberties and lives, in the\npolitical association, or government.\n\nThe political insurance company, or government, have no more\nright, in nature or reason, to assume a man's consent to be\nprotected by them, and to be taxed for that protection, when he\nhas given no actual consent, than a fire or marine insurance\ncompany have to assume a man's consent to be protected by them,\nand to pay the premium, when his actual consent has never been\ngiven. To take a man's property without his consent is robbery;\nand to assume his consent, where no actual consent is given,\nmakes the taking none the less robbery. If it did, the highwayman\nhas the same right to assume a man's consent to part with his\npurse, that any other man, or body of men, can have. And his\nassumption would afford as much moral justification for his\nrobbery as does a like assumption, on the part of the government,\nfor taking a man's property without his consent. The government's\npretence of protecting him, as an equivalent for the taxation,\naffords no justification. It is for himself to decide whether he\ndesires such protection as the government offers him. If he do\nnot desire it, or do not bargain for it, the government has no\nmore right than any other insurance company to impose it upon\nhim, or make him pay for it. Trial by the country, and no\ntaxation without consent, were the two pillars of English\nliberty, (when England had any liberty,) and the first principles\nof the Common Law. They mutually sustain each other; and\nneither can stand without the other. Without both, no people have any\nguaranty for their freedom; with both, no people can be otherwise\nthan free. [1]\n\n[1] Trial by the country, and no taxation without consent,\nmutually sustain each other, and can be sustained only by each\nother, for these reasons: 1. Juries would refuse to enforce a tax\nagainst a man who had never agreed to pay it. They would also\nprotect men in forcibly resisting the collection of taxes to\nwhich they had never consented. Otherwise the jurors would\nauthorize the government to tax themselves without their consent,\na thing which no jury would be likely to do. In these two ways,\nthen, trial by the country would sustain the principle of no\ntaxation without consent. 2. On the other hand, the principle of\nno taxation without consent would sustain the trial by the\ncountry, because men in general would not consent to be taxed for\nthe support of a government under which trial by the country was\nnot secured. Thus these two principles mutually sustain each\nother.\n\nBut, if either of these principles were broken down, the other\nwould fall with it, and for these reasons:If trial by the country\nwere broken down, the principle of no taxation without consent\nwould fall with it, because the government would then be able\ntotax the people without their consent, inasmuch as the legal\ntribunals would be mere tools of the government, and would\nenforce such taxation, and punish men for resisting such\ntaxation, as the government ordered.\n\nOn the other hand, if the principle of no taxation without\nconsent were broken down, trial by the country would fall with\nit, because the government, if it could tax people without their\nconsent, would, of course, take enough of their money to enable\nit to employ all the force necessary for sustaining its own\ntribunals, (in the place of juries,) and carrying their decrees\ninto execution.\n\nBy what force, fraud, and conspiracy, on the part of kings,\nnobles, and \"a few wealthy freeholders,\" these pillars have been\nprostrated in England, it is desired to show more fully in the\nnext volume, if it should be necessary.","title":"An Essay on the Trial By Jury","tradition":"philosophy-ethics","translated_text":null,"word_count":95203}